General terms and Conditions
1. General -application area
1.1 WebQuantum GmbH provides services in the field of online marketing. These General Terms and Conditions (hereinafter referred to as GTC) govern the contractual relationship between WebQuantum GmbH (hereinafter referred to as WebQuantum) and its customers, unless otherwise agreed upon individually. However, these General Terms and Conditions shall only apply to entrepreneurs within the meaning of § 310 para. 1 BGB.
1.2 These general terms and conditions apply exclusively. WebQuantum does not recognize any conflicting or deviating general terms and conditions of the customer unless WebQuantum has given its express written consent. These GTC shall also apply even if WebQuantum performs the delivery without expressly declared reservation in the knowledge of the customer’s terms and conditions that conflict with or deviate from these GTC.
1.3 These GTC shall also apply to all future transactions between the parties unless otherwise expressly agreed.
2. Offers, conclusion of contract and contract amendments
2.1 If the customer’s order is to be qualified as an offer according to § 145 BGB, we can accept it within two weeks.
2.2 The contract between WebQuantum and the customer is only concluded if the contract is concluded in text form or if an offer made by WebQuantum is accepted by the customer in text form.
2.3 Amendments and additions to the contract must always be made in text form.
2.4 We reserve all rights of ownership, copyrights and ancillary copyrights to illustrations, drawings, calculations, sample data records and other documents. This also applies to such written documents that are designated as “confidential”. The customer requires our express written consent before passing them on to third parties.
3. Term and termination
3.1 The contract begins with the legally binding signature of the order.
3.2 The duration and the period of notice as well as the automatic extension of the contract are subject to the conditions set out in the contract. If not available, the term is automatically extended by another 2 months, if not terminated with a notice period of 1 month to the end of the term
3.3 The right of termination for good cause (§ 314 para. 1 BGB) remains unaffected for both parties. WebQuantum shall have good cause to terminate the contract in particular if the customer persistently breaches its obligations under these General Terms and Conditions or if the customer fails to settle due invoices despite reminders and setting a deadline. WebQuantum reserves the right to terminate the contract without notice if, during the processing of the website/websites provided by the customer, it is discovered that they contain pornographic or illegal content or insinuations. The notice of termination must be made in writing.
4. Prices and terms of payment
4.1 Unless otherwise stated in the order confirmation, our prices for the supply of data or the performance of a service are understood to be those expressly stipulated in the contract documents. All additional services which are not expressly the subject of the agreed services must be paid for separately according to time and effort.
4.2 Statutory value-added tax is not included in our prices; it is shown separately on the invoice at the statutory rate on the day of invoicing.
4.3 The deduction of a discount requires special written agreement.
4.4 Unless otherwise stated in the order confirmation, the agreed amounts are due for payment net (without deduction) within seven days from the date of invoice in advance, at the latest by the 10th of the respective month. The statutory provisions regarding default of payment shall apply, see also § 286 para. 3 BGB.
4.5 Offsetting by the customer shall be excluded unless it relates to claims that are legally established, undisputed or acknowledged by WebQuantum. The customer shall only be entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
5. Scope of services, delivery and delay in delivery
5.1 The type and scope of WebQuantum’s services are determined exclusively by the service description which is reproduced in the contract documents.
5.2 Unless otherwise stated in the order confirmation, the delivery of the booked services shall be effected as online delivery. At WebQuantum’s option, this can be done either in encrypted form by e-mail or by providing the login data directly in the respective system. The delivery is always made in a file format that can be processed with the respective current program version of Microsoft Excel.
5.3 The start of the delivery times stated by us requires the clarification of all technical questions. Furthermore, compliance with our delivery obligation presupposes the timely and proper fulfilment of the customer’s obligations. We reserve the right to raise the defence of non-performance of the contract.
5.4 WebQuantum shall be obliged to implement the booked service only after receipt of full payment, unless WebQuantum has expressly agreed upon an advance performance obligation. However, WebQuantum shall be entitled to perform the service even before this date.
5.5 Partial deliveries by WebQuantum are permitted to a reasonable extent.
5.6 If the customer is in default of acceptance or culpably violates other obligations to cooperate, WebQuantum shall be entitled to claim compensation for any damages incurred, including any additional expenses. WebQuantum reserves the right to further claims.
5.7 WebQuantum shall be liable in accordance with the statutory provisions if the underlying legal transaction is a firm deal within the meaning of § 268 para. 2 no. 4 BGB or § 376 HGB. WebQuantum shall also be liable if, as a consequence of a delay in delivery for which WebQuantum is responsible, the customer is entitled to claim that his interest in further performance of the contract no longer exists.
5.8 WebQuantum shall be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which WebQuantum is responsible; fault on the part of representatives or vicarious agents shall be attributed. If the delay in delivery is not based on an intentional breach of contract for which WebQuantum is responsible, liability for damages shall be limited to the foreseeable, typically occurring damage.
5.9 Otherwise, in the event of a delay in delivery, WebQuantum shall be liable for each completed week of delay within the scope of a lump-sum compensation for delay in the amount of 3% of the value of the service, but not more than 15% of the value of the service.
5.10 Further legal claims and rights of the customer shall remain unaffected.
6. Use of data
6.1 Insofar as the offers and order confirmations refer to the purchase of data material, this shall entail – subject to a deviating regulation in individual cases – a transfer of the entire responsibility and also liability for the data to the purchaser. In case of purchase, the buyer of the data becomes the new responsible and collecting party of the data. The right to use the data is non-exclusive. Any rights to the data, in particular according to §§ 87a ff. UrhG (German Copyright Act) remain with WebQuantum in any case. WebQuantum is entitled to use the data itself or to grant third parties corresponding rights of use. For any kind of data use, including purchase, the customer of WebQuantum GmbH is obliged (albeit responsible) to sufficiently comply with the information obligations of the DS-GVO (basic data protection regulation) within the scope of data use.
6.2 WebQuantum expressly points out at this point that the customer may only use the data records provided for advertising purposes or campaigns in accordance with the applicable law. The customer is solely responsible for the secure storage, secure handling and proper use of data records and, if applicable, their proper deletion. Each advertiser is always responsible for the proper handling and the legally compliant handling of data and the corresponding advertising or image campaigns. WebQuantum is not liable for any misconduct of the customer.
7. Contractual penalty for exceeding the granted use
7.1 If the customer uses data provided to him by WebQuantum after termination of the right of use according to clause 5, WebQuantum shall be entitled to payment of a contractual penalty amounting to ten times the remuneration incurred for the delivery in the event of a culpable breach. The contractual penalty shall also be due in full if the customer uses only individual data records from the delivery beyond the granted use.
7.2 The claiming of a contractual penalty does not exclude the assertion of further damages.
8. Condition and liability for defects
8.1 The selection and quality of the data is exclusively based on the agreed specifications. The parties are aware that it is not possible to guarantee the ultimate accuracy and timeliness of the data, which is subject to constant fluctuation. Unless otherwise agreed upon, the specifications made by the parties shall therefore always only apply to the content of the data stock available at WebQuantum. However, WebQuantum is committed to maintaining and updating the data stock with due care and the sources of knowledge accessible in a permissible manner.
8.2 If the customer wishes to use the data provided for a specific contact in a specific form of advertising, he/she must ensure that the legal requirements for this are met, in particular that any necessary declarations of consent are available and that these also extend to the specific advertising approach. For this purpose, a data comparison with other data already available at the customer is expressly permitted.
8.3 If the delivery refers to data for which a declaration of consent has been expressly provided, WebQuantum shall only be liable for the fact that declarations have been made for the respective data records. WebQuantum cannot assume any liability for the fact that the relevant declaration was actually made by the person in question, nor for the fact that the declaration made covers the intended measure in individual cases, as existing declarations of consent are also open to interpretation in terms of factual and temporal scope.
8.4 The assertion of the customer’s rights in respect of defects presupposes that the customer has complied with the obligation to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code).
8.5 If the services rendered do not correspond to the agreed quality, the customer may initially only demand subsequent delivery of the agreed service. Only if the subsequent performance fails, the customer is entitled to choose between withdrawal from the contract or reduction of the purchase price to the extent of the defect.
8.6 If the customer asserts claims for damages against WebQuantum within the scope of the warranty for defects, the provision under item 8 shall apply.
8.7 The limitation period for claims for defects shall be six months, calculated from the transfer of risk.
8.8 Reimbursement services provided by WebQuantum without further explanation to the customer shall be considered as goodwill reimbursement in the absence of an agreement to the contrary and shall not create any obligations for WebQuantum.
9. Limitation of liability
9.1 WebQuantum shall be liable to the customer for damages, except in case of breach of material contractual obligations, only if and to the extent that WebQuantum, its legal representatives, executives or other vicarious agents are guilty of intent or gross negligence. In case of breach of material contractual obligations WebQuantum shall be liable for any culpable conduct of its legal representatives, executives or other vicarious agents.
9.2 Except in cases of intent or gross negligence of WebQuantum’s legal representatives, executives or other vicarious agents, liability shall be limited to the amount of damages typically foreseeable at the time of conclusion of the contract.
9.3 Liability for compensation of indirect damages, in particular for loss of profit, shall only exist in case of intent or gross negligence of legal representatives, executives or other vicarious agents of WebQuantum. WebQuantum shall not be liable for postage costs, printing costs, the commissioning of telemarketing agencies or comparable costs incurred within the scope of an advertising campaign, unless intent or gross negligence of WebQuantum and its legal representatives, executives or other vicarious agents can be proven.
9.4 WebQuantum is not responsible for the content provided by the customer. In particular, WebQuantum shall not be obliged to check the contents for possible violations of law. Should third parties assert claims against WebQuantum due to possible legal infringements, the customer undertakes to indemnify WebQuantum from any liability and to reimburse WebQuantum for any costs incurred by the customer due to the possible infringement.
9.5 The above-mentioned exclusions and limitations of liability shall not apply in the event of assumption of express guarantees and in the event of injury to life, body or health.
9.6 To the extent that liability for damages against WebQuantum is excluded or limited, this shall also apply with regard to personal liability for damages of its employees, workers, staff, representatives and vicarious agents.
10.1 WebQuantum is entitled to send its own newsletters to the customer to the e-mail address provided by the customer within the scope of the contractual relationship in accordance with the provisions of § 7 para. 3 UWG. The customer may object to this at any time by simple e-mail, phone call, fax or postal communication.
10.2 The customer undertakes towards WebQuantum to use delivered data only in compliance with applicable law, in particular the provisions of data protection law (see also section 5.6 of these GTC).
10.3 The achievable targets forecast by WebQuantum can be achieved within the specified period, but no guarantee can be given for this. Many external factors over which WebQuantum has no influence contribute to the achievement of the goal, so that no guarantee can be given for the final results.
10.4 The customer agrees that WebQuantum may name or describe both himself and the project for advertising purposes for his own company to a reasonable extent. He also agrees that the corresponding reference data may be made.
11. Place of performance, applicable law and place of jurisdiction
11.1 Unless otherwise stated in the order confirmation, WebQuantum’s place of business shall be the place of performance.
11.2 The contractual relationship shall be governed by the law of the Federal Republic of Germany, excluding the application of all international and supranational (contractual) legal systems, in particular the UN Convention on Contracts for the International Sale of Goods.
11.3 If the customer is a merchant, WebQuantum’s registered office shall be the agreed place of jurisdiction. However, WebQuantum shall also be entitled to sue the customer at the customer’s registered office.
As of: 01.05.2020