Terms & Conditions

1. Scope of Application

1.1 The General Terms and Conditions (hereinafter "GTC") of creativedesign.berlin – Dirk Golisch (hereinafter "creativedesign.berlin") apply exclusively to entrepreneurs, legal entities under public law, and special funds under public law for all services provided by creativedesign.berlin, unless otherwise stated in the offer or the order confirmation from creativedesign.berlin.

1.2 Conflicting or deviating general terms and conditions of the Customer shall not be recognized unless creativedesign.berlin explicitly agrees to their validity in writing. The GTC of creativedesign.berlin shall also apply if creativedesign.berlin performs services without reservation in the knowledge of conflicting or deviating general terms and conditions of the Customer.

1.3 Entrepreneurs within the meaning of these GTC are natural or legal persons or partnerships with legal capacity acting in the exercise of a commercial or self-employed professional activity.

2. General Provisions

2.1 The parties work together in a spirit of trust and inform each other immediately of any deviations from the agreed procedure or doubts about the correctness of the other party's procedure.

2.2 The parties shall name contact persons or project managers and their deputies who will manage the execution of the contractual relationship responsibly and expertly, providing the usual contact details (telephone including mobile number, fax number, e-mail). The Customer's project manager is in this respect the Customer's authorized recipient.

2.3 The parties must inform each other immediately of any changes in the named persons. Until such notification is received, the previously named contact persons and/or their deputies shall be deemed authorized to issue and receive declarations within the scope of their previous power of representation.

2.4 The contact persons shall communicate at regular intervals about progress and obstacles in the contract execution in order to be able to intervene in the execution of the contract in a guiding manner if necessary.

3. Conclusion of Contract

3.1 Offers from creativedesign.berlin are non-binding and subject to technical changes. They are valid until the deadline stated in the offer.

3.2 The contract is concluded by the placement of an order by the Customer within the offer period on the basis of the offer from creativedesign.berlin. Crucial for the observance of the deadline is the receipt of the order by creativedesign.berlin. The order can be placed by letter, fax, or e-mail.

3.3 The nature, scope, and timing of the services result from the offer of creativedesign.berlin or the service description agreed upon by the parties in the individual case.

4. Provision of Services

4.1 creativedesign.berlin provides the services described in more detail in the offer or the service description (works or services) for the Customer.

4.2 Deadlines for the provision of services on the part of creativedesign.berlin may only be promised by the contact person there.

4.3 The contracting parties will determine dates for the provision of services in writing whenever possible. Dates, the non-compliance with which should cause a contracting party to be in default, must always be defined in writing and designated as binding.

4.4 The services are provided by employees of creativedesign.berlin or by sufficiently qualified third parties commissioned by creativedesign.berlin.

4.5 If creativedesign.berlin provides works (e.g. development services), the Customer must check the works immediately after delivery and, should they verify obvious defects, notify creativedesign.berlin of such defects in writing within 10 working days, otherwise verify acceptance in writing. If the period expires without notification from the Customer, the delivered works shall be deemed accepted.

4.6 Notwithstanding Section 4.5, acceptance by the Customer shall take place at the latest with the error-free commissioning of the works within the scope of the project subject to the contract.

5. Force Majeure

5.1 Cases of force majeure entitle creativedesign.berlin to postpone services for as long as the event lasts. If the performance becomes permanently impossible for creativedesign.berlin due to force majeure, or impossible for a period of at least six months, creativedesign.berlin shall be released from the obligation to perform.

5.2 The term force majeure includes all circumstances for which creativedesign.berlin is not responsible or by which the provision of the service is made impossible or unreasonably difficult for creativedesign.berlin, such as strike, lawful lockout, war, terrorist acts, riots, natural disasters, import and export bans, energy and raw material shortages, and delayed self-delivery for which creativedesign.berlin is not responsible.

5.3 If creativedesign.berlin is released from the obligation to perform, the Customer is entitled to withdraw from the contract.

6. Changes to Services

6.1 If the Customer wishes to change the contractually agreed scope of the services to be provided by creativedesign.berlin, he must express this change request in writing to creativedesign.berlin. The further procedure is governed by the following provisions. For change requests that can be checked at short notice and are expected to be implemented within 8 working hours, creativedesign.berlin may refrain from the procedure according to Sections 6.2 to 6.5.

6.2 creativedesign.berlin checks what effects the desired change will have, in particular on remuneration, additional efforts, and deadlines. If creativedesign.berlin recognizes that the services to be provided cannot be carried out or can only be carried out with a delay as a result of the check, creativedesign.berlin informs the Customer of this and points out that the change request can only be checked if the affected services are postponed for an indefinite period strictly initially. If the Customer agrees to this postponement, creativedesign.berlin carries out the check of the change request. The Customer is entitled to withdraw his change request at any time; the initiated change procedure then ends. Additional costs incurred up to that point are to be borne by the Customer.

6.3 After checking the change request, creativedesign.berlin will explain to the Customer the effects of the change request on the agreements made. The explanation contains either a detailed proposal for the implementation of the change request or information as to why the change request cannot be implemented.

6.4 The contracting parties will immediately agree on the content of a proposal from creativedesign.berlin for the implementation of the change request, including the resulting new dates, and attach the result of a successful agreement to the text of the agreement to which the change relates as a supplementary agreement.

6.5 The Customer bears the costs arising from the change request. This includes in particular the checking of the change request, the creation of a change proposal, and any downtimes. The expenses are calculated in the event that an agreement on daily rates has been made between the parties, according to these, otherwise according to the currently valid price list remuneration of creativedesign.berlin.

6.6 If no agreement is reached or the change procedure ends for another reason, the original scope of services remains. The same applies in the event that the Customer does not agree to a postponement of the services for the further execution of the check according to Section 6.2.

6.7 creativedesign.berlin is always entitled to change the services to be provided under the contract or to deviate from them if the change or deviation is reasonable for the Customer considering the interests of creativedesign.berlin.

7. Customer's Duties to Cooperate

7.1 If the Customer recognizes that his own information and requirements are incorrect, incomplete, ambiguous, or not feasible, he must immediately inform creativedesign.berlin of this and the consequences recognizable to him.

7.2 The Customer must support creativedesign.berlin in the fulfillment of the contractually owed services. This includes in particular the timely provision of any necessary information, image, sound, text, or other data material in a common, directly usable, digital format as well as hardware and software to the required extent. In addition, the Customer provides his own employees in the required number for the execution of the contractual relationship who have the necessary specialist knowledge.

7.3 If a conversion of the material provided by the Customer into another format is necessary, the Customer bears the costs incurred for this. The Customer grants creativedesign.berlin the rights necessary for the use of these materials.

7.4 Furthermore, the Customer guarantees creativedesign.berlin unrestricted physical and/or remote access to the Customer's premises or systems and the areas necessary for creativedesign.berlin at any time of day or night to the required extent and at his own expense. Details on this may result from the offer or the service description agreed by the parties.

7.5 The Customer guarantees regarding creativedesign.berlin that persons not expressly authorized by creativedesign.berlin have no access to the premises or systems and areas of creativedesign.berlin mentioned in Section 7.4. The operation of or interference with software, hardware, etc. supplied or supervised by creativedesign.berlin by persons not expressly authorized by creativedesign.berlin is inadmissible.

7.6 The Customer performs his contractually owed cooperation acts at his own expense.

7.7 Should the Customer not meet the deadlines agreed with creativedesign.berlin and the period of six months until the acceptance of the online project be exceeded, a hosting fee to be paid of monthly 19 Euro (net) becomes due for each commenced month. This applies exclusively to internet projects.

8. Remuneration

8.1 The remuneration of creativedesign.berlin is based on time expenditure, which is invoiced monthly, or on a fixed price basis. Crucial for the remuneration of the time expenditure are the respective valid remuneration rates of creativedesign.berlin, unless otherwise agreed.

8.2 The Customer bears all expenses such as travel and accommodation costs, expenses, and contractually incurred remuneration claims of third parties against presentation of written proof by creativedesign.berlin. Travel costs are only to be reimbursed by the Customer if the travel route from the registered office of creativedesign.berlin is more than 50 km. Pure travel time is not remunerated. For the contractually compliant processing of orders with third parties, the cost of which is passed on directly to the Customer, creativedesign.berlin is entitled to charge a handling fee of 15%.

8.3 If the parties have not made an agreement on the remuneration of a service of creativedesign.berlin, the performance of which the Customer could only expect against remuneration according to the circumstances, the Customer must pay the usual remuneration for this service. In case of doubt, the remuneration rates demanded by creativedesign.berlin for its services are considered usual.

8.4 The prices for the services of creativedesign.berlin are shown in Euro and are subject to statutory value-added tax.

9. Payment Conditions

9.1 Subject to individual regulations between the parties or a different payment target defined elsewhere, the invoices of creativedesign.berlin are due for payment immediately upon invoicing (invoice date).

9.2 If the Customer is in default of payment, creativedesign.berlin is entitled to discontinue or withhold further services without prejudice to further rights until the Customer has made payment. Furthermore, creativedesign.berlin can make the execution of still outstanding services optionally dependent on the Customer advancing the respective next partial payment in full or providing security for the still outstanding remuneration in the form of an unlimited, directly enforceable guarantee from a major European bank on first demand.

9.3 In addition, creativedesign.berlin is entitled in the event of default by the Customer to claim default interest in the amount of 8% p.a. above the respective valid base interest rate. creativedesign.berlin is furthermore entitled to demand higher interest for another legal reason and/or to assert further damage.

9.4 creativedesign.berlin is entitled to charge a flat-rate dunning fee of € 10.00 for each reminder. Each further reminder triggers further dunning fees of € 10.00 each.

10. Rights in Case of Defects in Work Services

10.1 creativedesign.berlin carries out all services commissioned by the Customer to the best of its knowledge and belief.

10.2 creativedesign.berlin guarantees that the work services (e.g. software, hardware, data carrier material, etc.) are free from material or manufacturing defects recognizable to creativedesign.berlin at the time of provision and that supplied software is executable on the agreed hardware.

10.3 The Customer may not refuse acceptance of the work services due to insignificant defects.

10.4 If defects occur in the work services after acceptance that are within the responsibility of creativedesign.berlin, creativedesign.berlin will, provided that the Customer notifies the existence of these defects immediately in writing, and unless otherwise agreed between the parties, provide telephone support during normal office hours (Monday to Friday 9:00 a.m. to 6:00 p.m.) within a reasonable time in response to the notification of defects, – in the event that telephone support does not lead to the rectification of the defects, provide support by e-mail or remote access, – or in the event that this form of support also does not lead to the rectification of the defects, verify the defects on site if necessary. In addition, the Customer is entitled to statutory rights due to defects.

10.5 The Customer loses his rights according to Section 10.4 if he does not complain about them in writing to creativedesign.berlin immediately after becoming aware of them. In any case, however, the rights of the Customer according to Section 10.4 expire at the latest one year after acceptance of the work services.

10.6 In addition, claims of the Customer due to defects are excluded if creativedesign.berlin proves that the errors occurring are due to improper or non-contractual use (handling) of the work services by the Customer or his employees and/or unauthorized third parties. In the case of supplied software, this applies in particular if the defects result from the fact that it is used in a software or hardware environment that does not correspond to the respective specifications of creativedesign.berlin at the time of conclusion of the contract or if the defects occur as a result of installation, modification, and/or expansion by the Customer himself.

11. Rights

11.1 creativedesign.berlin makes the services available to the Customer exclusively for the purposes described in more detail in the offer or the service description. Ownership of tangible objects (e.g. hardware, data carriers, documentation, etc.) remains with creativedesign.berlin unless otherwise agreed.

11.2 With regard to services provided by creativedesign.berlin that are protected by registered rights or enjoy copyright protection (e.g. software, etc.), creativedesign.berlin grants the Customer, unless otherwise agreed, upon full payment of the agreed remuneration, a simple, non-transferable and non-sublicensable right of use limited in space, time, and content to the purposes of the specific project (according to the offer or service description). The Customer receives, unless otherwise agreed, in particular no reproduction rights and rental rights to the services subject to the contract.

11.3 Unless the parties agree otherwise, the Customer has no claim to the granting of rights, use, or surrender of the source codes of software created and delivered by creativedesign.berlin. §§ 69 d, e UrhG remain unaffected.

11.4 Until full payment of the remuneration, the use of the services provided by the Customer is only permitted revocably. creativedesign.berlin can revoke the use of such services, for the payment of which the Customer is in arrears, for the duration of the default.

11.5 If a third party asserts justified claims against the Customer due to the violation of property rights by services provided by creativedesign.berlin and used in accordance with the contract, the following applies:

11.5.1 creativedesign.berlin will, at its own discretion and expense, either obtain a right of use for the services concerned, change them so that the property right is not violated, or replace them. If this is not possible for creativedesign.berlin under reasonable conditions, creativedesign.berlin must take back the services against reimbursement of the remuneration paid. creativedesign.berlin can demand reasonable compensation from the Customer for the use made.

11.5.2 The aforementioned obligations of creativedesign.berlin exist only if the Customer informs creativedesign.berlin immediately in writing of the claims asserted by the third party, does not acknowledge a violation, and reserves all defensive measures and settlement negotiations for creativedesign.berlin. If the Customer discontinues the use of the services for reasons of damage mitigation or other important reasons, he is obliged to point out to the third party that the discontinuation of use is not associated with an acknowledgment of an infringement of property rights.

11.5.3 Claims of the Customer are excluded insofar as he is responsible for the infringement of property rights. Claims of the Customer are furthermore excluded insofar as the infringement of property rights is caused by the violation of special specifications of creativedesign.berlin, by an application not foreseeable by creativedesign.berlin or by the fact that the service was changed by the Customer or used together with products or components not supplied by creativedesign.berlin.

11.5.4 Further claims of the Customer due to an infringement of third-party property rights are excluded.

12. Liability

12.1 creativedesign.berlin is liable without limitation for intent and gross negligence.

12.2 For simple negligence, creativedesign.berlin is liable – except in the case of injury to life, body or health – only if essential contractual obligations (cardinal obligations) are violated. In this case, liability is limited to the contract-typical and foreseeable damage, but strictly limited to the amount of the order sum for the specific project. Essential contractual obligations are understood to be those obligations which are precisely to be granted to the Customer according to the meaning and purpose of the specific project or whose fulfillment makes the proper execution of the project possible in the first place and on whose compliance the Customer may regularly rely.

12.3 Liability of creativedesign.berlin according to Section 12.2 in the event of a breach of essential contractual obligations does not apply insofar as the Customer is in default with the payment of services from creativedesign.berlin.

12.4 Liability for indirect and unforeseeable damages, loss of data, data network failures, loss of production and use, lost profit, lost savings, and financial losses due to claims by third parties is excluded within the scope of liability according to Section 12.2, unless creativedesign.berlin is liable according to Section 12.2 without limitation due to injury to life, body or health.

12.5 Any further liability of creativedesign.berlin than in these GTC is – regardless of the legal nature of the asserted claim – excluded. creativedesign.berlin is in particular not liable for damages based on programming services or programs or hardware of the Customer or third parties commissioned by him. creativedesign.berlin is also not liable for incorrect operation by the Customer nor for errors or incorrect processes based on the operating systems and programming and system environments used by other manufacturers. Finally, creativedesign.berlin is not liable for the loss of data and/or programs insofar as the damage is based on the fact that the Customer has failed to carry out data backups and thus to ensure that lost data can be restored with reasonable effort.

12.6 The limitations or exclusions of liability according to Sections 12.2, 12.3, 12.4, and 12.5 do not apply to a statutory mandatory strict liability (e.g. under the Product Liability Act) or liability from a strict guarantee.

12.7 Insofar as the liability of creativedesign.berlin is excluded or limited according to 12.2, 12.3, 12.4, and 12.5, this also applies to the personal liability of the employees, workers, representatives, organs, and vicarious agents of creativedesign.berlin.

13. Non-Solicitation

13.1 The Customer undertakes not to solicit employees of creativedesign.berlin or to employ them without the consent of creativedesign.berlin during the duration of the cooperation of the parties and for a period of one year thereafter.

13.2 For each case of culpable contravention, the Customer undertakes to pay a contractual penalty to be determined by creativedesign.berlin in terms of amount and to be verified by the competent court in the event of a dispute.

14. Confidentiality, Press Release, Data Protection

14.1 The parties will treat all information, business transactions, and documents that become known to them in connection with the projects carried out on the basis of these GTC confidential towards third parties (subcontractors, freelancers, etc. permissibly involved in the execution of the contractual relationship are not third parties). This obligation continues to exist after the termination of the corresponding project. The contracting partners will impose a corresponding obligation on their employees affected by the respective project.

14.2 The aforementioned obligations do not apply to confidential information insofar as the recipient proves that – it was already lawfully known to him before without an obligation to confidentiality, – it was or became generally known without the recipient being responsible for this, – it was lawfully communicated or left to the recipient by a third party without an obligation to confidentiality, – it was developed by the recipient independently and without recourse to confidential information, – it must be disclosed due to a binding official or judicial order or mandatory legal regulations, provided that the other party was informed in writing of the disclosure in good time beforehand or – it was released for publication in writing by the disclosing party.

14.3 Each party has the right to refuse the acceptance of confidential information before it is handed over.

14.4 If a contracting party so requests, the documents handed over by it such as strategy papers, briefing documents, etc. must be returned to it after the termination of the contractual relationship, insofar as the other contracting party cannot assert a legitimate interest in these documents.

14.5 Press releases, information, etc., in which one contracting party refers to the other, are only permitted after prior written coordination – also by e-mail.

14.6 Insofar as personal data is stored or otherwise processed, the parties will, if necessary, conclude a data processing agreement and take the necessary technical and organizational measures to secure the data against misuse. These obligations continue to exist after the termination of the project.

15. Confidentiality Obligation

15.1 The confidentiality obligation extends in particular to:

15.1.1 the personal and economic circumstances of the owner as well as his intentions, objects, plans, and internal conditions;

15.1.2 the personal and economic circumstances and data of the employees, customers, and business partners of the owner;

15.1.3 trade and business secrets.

15.2 The obligation to confidentiality does not apply to those confidential information that was already known before the client passed it on or disclosed it to him or information that was acquired from third parties who for their part had not given a confidentiality obligation to the client either directly or indirectly, or which becomes generally available to the public at present or later without fault.

15.3 The Contractor undertakes to impose the same obligations to confidentiality on his employees, agents, and vicarious agents in accordance with this agreement – within the framework of legal possibilities in writing – also for the time after leaving the employment or contract relationship.

15.4 The confidentiality obligation extends to all statements not only to strangers, but also to family members within the meaning of § 11 StGB; it extends to all documents, business papers, receipts.

15.5 The Contractor furthermore undertakes not to process, disclose, make accessible, or otherwise use protected personal data without authorization for a purpose other than that belonging to the respective lawful task fulfillment. Changes and additions to this agreement must be made in writing. This also applies to the cancellation of the written form requirement.

16. Termination

16.1 Irrespective of the contract duration agreed by the parties in the individual case, the right to termination without notice of an individually concluded contract for good cause remains unaffected.

16.2 A good cause for termination without notice for creativedesign.berlin exists in particular if:

16.2.1 the Customer violates his obligations arising from these GTC or the specific contract and does not remedy the situation within 14 days after being requested to do so by creativedesign.berlin and it therefore becomes unreasonable for creativedesign.berlin to adhere to the agreement;

16.2.2 the Customer is in arrears with one or more payments for more than 2 months;

16.2.3 the Customer ceases his business activity;

16.2.4 the Customer becomes insolvent and/or applies for the opening of insolvency proceedings against his assets and the application is not withdrawn within 2 weeks of submission.

16.3 The termination of an individual contract does not release the Customer from the obligation to pay the remuneration to creativedesign.berlin that has become due on the day of termination or becomes due. Any claims for damages by creativedesign.berlin remain unaffected.

17. Assignment, Retention, Set-off, Naming

17.1 The assignment of claims is only permitted with the prior written consent of the other contracting party. Consent may not be refused unreasonably. The regulation of § 354 a HGB remains unaffected.

17.2 A right of retention can only be asserted due to counterclaims from the respective contractual relationship. The contracting parties can only set off against claims that have been legally established or are undisputed.

17.3 creativedesign.berlin may name the Customer on its website or in other media as a reference customer. creativedesign.berlin may furthermore publicly reproduce the services provided for demonstration purposes or refer to them, unless the Customer can assert a conflicting legitimate interest. creativedesign.berlin is mentioned with logo and link as well as address at a suitable place on the Customer's internet presence (e.g. under the imprint) and may also present itself appropriately on other reference objects.

18. Final Provisions

18.1 Changes and additions to these GTC must be made in writing. This also applies to a waiver of this written form clause. Terminations must be made in writing. Notifications that must be made in writing can also be made by e-mail.

18.2 These GTC are exclusively subject to the law of the Federal Republic of Germany excluding the UN Sales Convention.

18.3 The exclusive place of jurisdiction for all disputes in connection with these GTC and the contracts concluded under them between the parties is the registered office of creativedesign.berlin.

18.4 Only our GTC apply. Conflicting GTC do not become part of the contract, even if their validity is not expressly contradicted.