1. General
1.1 The following principles shall apply exclusively to all contracts for design and consulting services between nFRONTIER GmbH (hereinafter referred to as the Contractor) and the Client. This shall apply in particular even if the Client uses general terms and conditions, and these contain clauses that are contrary to or deviate from the principles set forth herein.
1.2 The basic principles listed here shall also apply if the Contractor executes the order without reservation in the knowledge of terms and conditions of the Client that conflict with or deviate from the basic principles listed here.
1.3 Deviations from the basic principles listed here shall only be valid if the Contractor expressly agrees to them in writing.
1.4 Offers made by the Contractor are subject to change without notice and are non-binding. However, a contract shall only be concluded upon written placement of the order by the Client.
1.5 The scope of services ordered in the order shall be binding.
2. Copyright & Rights of Use
2.1 The Contractor's works is protected as intellectual creations by copyright law, the provisions of which shall be deemed to have been agreed even if the level of creation required under §2 UrhG (German Copyright Act) has not been reached.
2.2 The ownership, title, and interest (and any other applicable intellectual property right) in the Project shall be vested in and held by Contractor. Client acknowledges that Contractor (or its licensors) owns all right, title and interest in and to the Project, including but not limited to all trademarks, copyrights, documentation and computer recorded data comprising or contained in the Service, further including the documentation and source code relating to the Software, as applicable. Contractor (or its licensors) reserves all rights not expressly granted to Client herein.
2.3 The temporal and spatial transfer of the rights of use to the Contractor's work shall be based on a separate written agreement.
2.4 Without the Contractor's consent, the work, including the copyright designations, may not be changed, neither in the original nor in the reproduction. Any imitation, even of parts of the work, shall be inadmissible.
2.5 The Contractor's Works may only be used in the agreed manner, for the agreed purpose and to the agreed extent. The Client acquires the right to use the works within the agreed scope upon payment of the fee.
2.6 Repetitions (e.g. subsequent editions or variations in size) or multiple uses (e.g. for another product) shall be subject to a fee; they shall require the consent of the Contractor.
2.7 The transfer of granted rights of use to third parties shall require the consent of the Contractor.
3. Liability
3.1 The contractual and non-contractual liability of the Contractor shall be limited to intent and gross negligence, unless it concerns the breach of a material contractual obligation or injury to life, body or health.
3.2 Liability for indirect and unforeseeable damage, loss of production and use, loss of profit, loss of savings and financial loss is excluded, except in the case of injury to life, limb or health. Contractor shall not be liable for production stoppage, business interruption, any consequential or incidental damages, loss of production, loss of profit of any kind, regardless of the legal nature of the claim asserted, resulting from the use or impossibility of use of the project result, even if Contractor has been advised of the possibility of such damages.
3.3 However, the above limitations or exclusions of liability shall not apply to any strict liability prescribed by law.
3.4 Insofar as liability is excluded or limited in accordance with Sections 3.1 and 3.2, this shall also apply to the personal liability of the Contractor's employees, representatives, bodies and vicarious agents.
3.5 The contractor undertakes to execute the order with the greatest possible care, in particular also to treat samples, documents, templates etc. provided to him with care.
3.6 Liability for damages due to force majeure is excluded. In no event shall any liability of Contractor or its licensors, directors, officers, employees or affiliates arising out of or in any way connected with this Agreement exceed the amount actually paid by Client for the Project, regardless of the form of action, whether based on contract, negligence, product liability, trade practices or otherwise. Contractor shall not be liable for any production stoppage, business interruption, any consequential or incidental damages, loss of production, loss of profits of any kind, etc. (including product liability) for any reason whatsoever or for any indirect, special or consequential damages or costs of any kind arising out of the use or inability to use the result of the project, even if Contractor has been advised of the possibility of such damages.
3.7 The Contractor shall not be liable for the elaborations, developments, drafts, final designs and drawings approved by the Client or for the feasibility of the production.
3.8 The contractor shall not be liable for the elaborations, developments, drafts, final designs and drawings approved by the client or for the feasibility of the production.
4. Defects, Iterations & Acceptance
4.1 Only grossly improper or uncleanly executed deliveries and services as well as those in which the tasks set and the desired design have been completely disregarded and/or instructions have been grossly deviated from or which do not correspond to the state of the art shall be deemed defective.
4.2 Complaints of any kind whatsoever must be made in writing to the Contractor within 14 days of delivery of the work, without prejudice to the statutory warranty.
4.3 In the event of iterations, changes or additions to the agreed project and resulting additional work (e.g. due to new requirements of the Client or necessary changes identified by the Contractor), the respective party shall inform the other party in writing or in text form (by e-mail). Iterations or changes that result in additional costs, time or work must be communicated to all parties and accepted in writing by both parties. If changes or amendments are not accepted by the contractor due to e.g. impossibility, the entire contract may be terminated with immediate effect. Work and services performed up to that point must be delivered or paid for.
4.4 Acceptance may not be refused on creative-artistic grounds. There is freedom of design within the scope of the order.
5. Remuneration
5.1 The Remuneration shall be divided into order phases. It shall be made on the basis of the offer prepared by the contractor. The preparation of drafts is already subject to a fee, unless otherwise agreed in writing. The fees are net amounts which are to be paid plus the statutory value added tax.
5.2 The price stated in the offer and approved by the client is binding. In the event of requests for changes and additions, additional remuneration shall be paid for the entire additional expenditure of the Contractor. Reduced expenditure shall be for the benefit of the contractor and shall not lead to a reduction of the agreed price..
5.3 All invoices to the Client shall be due within 7 calendar days. In the event of late payment, the Contractor shall be entitled to charge interest on arrears at a rate of 5% above the respective base interest rate of the Bundesbank p.a.
6. Publications, PR & Design Reference
6.1 The Client shall include a reference to the Contractor in publications or, if possible, on the product or on the product packaging, or shall name the Contractor or otherwise identify him.
7. Delivery Time
7.1 The Client shall be notified of any failure to meet delivery dates and deadlines, stating the reasons and the presumed duration. Compensation for damages and withdrawal from the contract always require a written reminder with a previously set reasonable deadline.
7.2 Delays in delivery resulting from iterations, requests for changes or lack of additional work by the Client shall not be at the Contractor's expense.
7.3 The Contractor shall not be liable for impossibilities of delivery or delays in delivery that occur due to force majeure or other events that were not foreseeable at the time the contract was concluded and that are beyond the Contractor's control.
8. Confidentiality
8.1 All information of the Contractor and the Client which becomes accessible in connection with the order shall be treated as strictly confidential by both parties even after termination of the order. Claims for damages shall remain unaffected.
8.2 The Client and the contractor acknowledges that the work and the results of the Project are confidential information and that they contain confidential information and valuable trade secrets of the Contractor or the Client and that such confidential information remains the sole and exclusive property of the Contractor resp. the Client, its parent, subsidiary and affiliated companies and/or its licensors. The confidential information will be disclosed by the owner in order to carry out the project,
8.3 The measures taken by Client or the Contractor to protect the Confidential Information shall be at least as stringent as the measures Client or the contractor applies to its most valuable confidential and proprietary information.
9. Limitation of actions, set-off
9.1 Claims of the Client against the Contractor shall be subject to a limitation period of 12 months.
10. Orders by proxy
10.1 If the Contractor places orders with third parties within the scope of the provision of services, the Contractor shall neither be liable for the fulfillment of the contractual obligation of the Client or the third party nor for their creditworthiness, which it has not checked. The Client shall indemnify the Contractor against all claims of third parties in this connection.
11. Final provisions
11.1 Any deviating or supplementary individual contractual provisions relating to these GTC or the order placed must be in writing in order to be effective and shall only apply to the respective order. This also applies to the waiver of the written form clause. Verbal collateral agreements do not exist. Should any of the provisions of these General Terms and Conditions or of the order be or become ineffective, reference is made to Section 306 (2) of the German Civil Code (BGB). The invalid or unenforceable provision shall be replaced by the statutory provision. The same shall apply in the event of a loophole. The German version of this GTC shall be binding. If there are different interpretations between a bilingual version, the German version shall prevail.
11.2 These General Terms and Conditions of Business shall be governed by the laws of the Federal Republic of Germany. The place of performance and jurisdiction is Berlin. Both parties shall endeavour to settle all disputes concerning this contract amicably. Both parties waive the right to litigate matters relating to this contract by way of documentary proceedings (§ 592 ZPO). The parties also waive the right to resort to arbitration. In the event of a dispute, matters shall be settled by the ordinary courts in Germany.
nFRONTIER GmbH
Kiefholzstr. 3
12435 Berlin
Tel: +49 30 91563283
Geschäftsführung: Daniel Büning
Handelsregister HRB 222578 B