General Terms and Conditions

These Terms and Conditions apply exclusively to the U.S. market.


Contractual terms for all contracts between


GermanWebCrafters  (Office address in the U.S.)

415 N Camden Dr
Suite 111 #810
Beverly Hills, CA 90210

USA


Email: hello@GermanWebCrafters.com

Phone: +1 (424) 276 9088



GermanWebCrafters is a web design and marketing service for SME businesses, offered exclusively in the U.S.A. by


Marketing4KMU - agency for marketing & communication

Germany
Email: hello@marketing-4-kmu.com


hereinafter referred to as "Contractor" – and its customers, hereinafter referred to as "Client."



A.General Provisions


§ 1 Scope of Application

  1. The following General Terms and Conditions exclusively apply to the business relationship between the Client and the Contractor, in the version valid at the time of the order. Deviating general terms and conditions of the Client are not recognized unless the Contractor expressly agrees to their validity in writing.
  2. The General Terms and Conditions apply irrespective of whether you are a consumer, entrepreneur, or merchant. The Client is considered a consumer unless the purpose of the ordered deliveries and services can predominantly be attributed to their commercial or independent professional activity. Conversely, an entrepreneur is any natural or legal person or legally capable partnership acting in the exercise of its commercial or independent professional activity when concluding the contract.
  3. In the event of discrepancies between the contractual documents, the following order of precedence applies:
  • Service description with the respective offer
  • Individual contract
  • General Terms and Conditions


§ 2 Scope of Services - Overview

The Contractor offers business consulting with a focus on corporate and marketing consulting for small and medium-sized enterprises. The range of services includes consulting and implementation of digital marketing concepts, consulting and implementation of video marketing, social media marketing, creation of business websites and webshops/e-commerce solutions, as well as the usage of advertising technology. Additionally, the Contractor provides services as a hosting provider.

The specific components to be contracted are outlined in the individual contract concluded between the parties.


§ 3 Contract Formation

  1. The presentation of the range of services on the Contractor's website constitutes a non-binding offer. A legally binding offer is not associated with this presentation.
  2. The offer specifies the concrete scope of services, parties’ obligations, and the delivery and payment conditions ("Service Description"). Any subsequent modifications are not included in the service and will be charged separately if necessary.
  3. The offered services may consist of single services and/or ongoing services to be provided regularly over a fixed term.
  4. The contract is formed upon acceptance of the offer handed out by the Contractor. The Client typically receives this offer electronically to the provided email address. The offer is binding as stated therein. A binding contract is concluded upon the timely return of the signed offer.


§ 4 Prices and Payments

  1. The specific prices are solely determined by the service description and the individual offer agreed upon by the parties. All prices are net prices and exclude applicable sales tax. The applicable sales tax will be determined based on the statutory rates in effect in the respective U.S. state or local jurisdiction where the service is provided or where the customer's billing address is located. Any such tax will be itemized separately on the invoice.
  2. The Contractor utilizes an external service provider for invoice processing. The transfer of personal data required for billing is conducted in compliance with applicable data protection laws, including, where applicable, Article 28 of the General Data Protection Regulation (GDPR) for data subjects located in the European Union. For data subjects in the United States, the processing of personal data complies with relevant U.S. data privacy laws, such as the California Consumer Privacy Act (CCPA), where applicable.
  3. Bills for regular services, such as web hosting, are issued as an annual amount in advance at the beginning of the respective billing period. Other regular services, such as on-site, telephone, or remote consultations and social media management, are invoiced retrospectively in the following month for the previous month.
  4. Unless otherwise agreed, invoice amounts are due for payment within 14 days of receipt of the invoice.
  5. The Client shall be considered in default if the due date stated on the invoice or the agreed payment date is missed. In the event of a delay, the provider is entitled to charge interest on overdue payments at the maximum rate permitted by applicable law, as well as reasonable reminder fees and a flat fee for late payment. Furthermore, the Contractor reserves the right to suspend recurring services in case of delay without forfeiting the claim for the agreed compensation.
  6. After the expiration of the agreed initial term, the Contractor reserves the right to reasonably adjust the prices for services outlined in the service description. Such price adjustments shall be made no earlier than the end of the initial contract term.
  7. The invoice will be sent to the Client exclusively in electronic form to the email address stored with the Contractor. Payment is to be made by bank transfer unless otherwise agreed in writing in the offer.


§ 5 Service Delivery

  1. The agreed delivery and service deadlines specified in the service description shall apply.
  2. Delivery and service deadlines are extended appropriately in cases of unforeseen events such as natural disasters, wars, or pandemics, or in cases where the Client fails to fulfill their participation obligations in a timely manner.


§ 6 Client's Duties of Cooperation

  1. The Client shall provide all the necessary information and documents required for service performance by the agreed date.
  2. The Contractor shall properly safeguard documents provided by the Client and return them upon contract termination.
  3. The Client shall appoint a qualified representative who is authorized to make necessary decisions for the execution of the contract.


§ 7 Usage Rights

  1. Upon full payment, the Contractor grants the Client all exclusive, irrevocable, and unrestricted rights of use to the contractual website for all known and unknown types of use, without any content-related, geographical, or time limitations, to the full extent.
  2. The Client is entitled to edit, modify, supplement, expand, partly or fully replace, or delete the contractual website; have it adapted by third parties; dismantle and reassemble it; or translate it into other languages. The Contractor will not invoke moral rights concerning the website or its individual parts unless a gross violation of his moral rights as the creator occurs. If in doubt, the Contractor may request not to be credited in connection with the altered website.
  3. All naming, title, and trademark rights relating to the website or individual parts created through use of the website belong to the Client.
  4. The Contractor shall be credited as the author of the website on it, unless explicitly agreed otherwise by the parties.
  5. The Client assures that for any existing domain (via which the created website/webshop is accessible after completion and online deployment), they are also the domain owner.
  6. The Client exclusively holds the right to exploit or have exploited all deliverables resulting from the Contractor's activities without material, temporal, or spatial limitations. Deliverables include all contributions, posts, information, documents, and files created in the context of the Contractor's work. This also includes documentation, tests, and other records created before and during fulfillment of the contract. If a deliverable is not fully complete, the individual parts are still considered a deliverable under this contract.
  7. For deliverables classified as copyrighted works under copyright law, the Contractor hereby grants the Client exclusive, unlimited usage rights for all known types of exploitation. This includes in particular the right to modify, edit, or otherwise adapt the deliverables; reproduce, publish, disseminate, and display them in their original, modified, edited, or adapted form; transmit them via remote networks or wirelessly; and use them for operating data processing systems. The Client holds all rights to commercially exploit the deliverables.
  8. The Client does not require further consent from the Contractor to fully or partially exercise these rights.
  9. The Client is explicitly allowed to transfer or grant their rights related to the deliverables to third parties, either wholly or in part, without requiring further approval from the Contractor.
  10. The Contractor is entitled to use images, videos, and other media from image databases and stock media providers. However, transferring rights to the Client deviates from the provisions of § 7, as follows:
  • The transfer of license or usage rights that the Contractor has acquired from image databases or stock media providers to the Client is only permissible to the extent that such license or usage rights exist for the Contractor with the respective image database or provider.
  • License and usage rights are subject to the terms in the contract between the image database or provider and the Contractor.
  • Consequently, license and usage rights can only be transferred by the Contractor to the Client within the scope agreed under those terms. The Client is entitled to request information about this from the Contractor.

11. The Contractor will be credited as the author of the website on it unless a different agreement has been explicitly made by the parties.




§ 8 Confidentiality

  1. The Contractor undertakes not to use or disclose to third parties any trade and business secrets or confidential information of the Client that come to his knowledge during his work for the Client without the prior approval of the Client. The same applies to the documents handed over and knowledge communicated during this time.
  2. Confidentiality applies to all information exchanged between the contractual parties under the agreement, regardless of whether this information is exchanged orally or in writing, is explicitly marked as confidential, or is to be considered confidential due to the circumstances. This also particularly applies to the content of this agreement and the knowledge gained during its execution.
  3. If information qualified as confidential must be made public pursuant to a binding court decision, administrative order, or other directive from a governmental or regulatory authority, the party addressed by such a directive is obligated to promptly inform the other party and provide reasonable assistance in contesting such a directive.
  4. This confidentiality agreement continues to apply even after the termination of the contractual relationship.


§ 9 Data Protection

  1. If the Contractor collects, processes, or uses personal data of third parties on behalf of the Client in connection with the fulfillment of this agreement, the processing shall be conducted in accordance with applicable data protection laws.
  2. The website/webshop to be created will be hosted by an external service provider (host). The personal data collected on the website/webshop will be stored on the servers of the host. This may involve, amongst others, IP addresses, contact inquiries, metadata, communication data, contractual data, contact data, names, website/webshop access data, and other data generated via the website/webshop.
  3. The processing of personal data by the Contractor as the host is carried out for the purpose of fulfilling the contract with the Client in accordance with Art. 6(1)(b) GDPR.
  4. The Contractor will only process third-party personal data to the extent necessary to fulfill their contractual performance obligations under the hosting agreement.
  5. To ensure compliance with data protection regulations, the Client and the Contractor shall sign a data processing agreement.


§ 10 Liability

  1. Claims for damages by the Client are excluded. Exceptions include claims for damages resulting from injury to life, body, or health, or from the breach of essential contractual obligations (cardinal obligations), as well as liability for other damages caused by intentional or grossly negligent breaches of duty by the Contractor, their legal representatives, or vicarious agents. Essential contractual obligations are those whose fulfillment is necessary to achieve the purpose of the contract.
  2. For breaches of essential contractual obligations, the Contractor is liable only for typical, foreseeable damages under the contract if such breaches are caused by simple negligence, except in cases involving claims for damages resulting from injury to life, body, or health.
  3. The limitations of paragraphs 1 and 2 also apply in favor of the Contractor’s legal representatives and vicarious agents if claims are directly made against them.
  4. The exclusions and limitations of liability contained in paragraphs 1 and 2 do not apply if the Contractor fraudulently concealed a defect or has assumed a warranty for the quality of the goods. The same applies if the Contractor and the Client have reached an agreement on the condition of the goods. The provisions of the Product Liability Act remain unaffected.


B. Special Provisions


§ 11 General

  1. The Contractor offers the Client a web design package consisting of several components, which are specified in the individual contract.
  2. If the web design package includes the creation of legal texts (privacy policy and legal notice) for websites, the Contractor is responsible only for embedding template texts at the correct location based on the Client's information. The template texts provided by the Contractor consist of general formulations, which have neither been legally reviewed nor tailored to individual circumstances. The Contractor is not liable for providing legally correct content, nor is the Contractor obligated to commission third parties to perform such tasks. The Client is solely responsible for ensuring the legal accuracy of the provided texts.
  3. If the web design package includes consulting services, these are commissioned based on individual agreements.
  4. If the Contractor provides work services, such as the creation of a website, the scope and costs are defined by the Contractor’s offer, which outlines the specific services and prices.
  5. If the Contractor registers a domain, the associated costs are agreed upon on an individual contractual basis. Unless otherwise agreed, domain costs are listed on the annual hosting invoice and billed accordingly. The domain owner is the Client. When registering a domain through the Contractor, availability of the desired domain will be checked. However, checking for possible rights violations of third parties associated with the registration of the domain(s) is not part of the agreement and is not the Contractor's responsibility. It is the Client's responsibility to ensure that the desired domain does not infringe on third-party rights.
  6. For social media marketing services, the Client may choose between a contract with a fixed term or billing on an hourly basis. The hourly rate is subject to individual agreement between the parties and is listed as a net price plus applicable VAT. If the Client optionally books video contributions, these are billed separately at the agreed price.
  7. For managing existing or newly created social media channels, a setup fee is charged. This fee is agreed upon on an individual contractual basis and covers setup tasks such as briefings, determining the communication style, and planning the orientation.
  8. All prices are net prices, excluding applicable statutory VAT. The scope of the service obligation is determined by the individual contract.
  9. The Client guarantees that they hold all rights to any material provided (e.g., image files, logos, texts) and that the material is free of third-party rights (e.g., copyright, trademark, or personality rights) and does not violate any legal regulations.

§ 12 Term and Termination

  1. Hosting contracts are concluded for a period of 12 months unless otherwise agreed and are automatically renewed for an additional 12 months unless terminated by either party with three months' notice prior to the end of the initial term or any renewal period.
  2. If the parties enter into a social media marketing contract with a fixed term, it is automatically renewed for the duration of the agreed initial term unless terminated by either party with three months' notice prior to the end of the initial term or any renewal period.
  3. The right of both parties to terminate the agreement extraordinarily for good cause remains unaffected.
  4. Any termination must be made in text form.
  5. Upon termination of the hosting contract, the website will be taken offline.
  6. Upon effective termination of this agreement by the Client, all usage rights to the already created websites and ownership of all physical and digital embodiments thereof shall transfer to the Client upon payment of the value of the services already performed.


§ 13 Obligations of the Client in Web Design Contracts

  1. If the Client does not fulfill their cooperation obligations as stipulated in the Contractor's General Terms and Conditions or in the individual contract, despite being requested to do so by the Contractor, within four weeks after the assignment is issued, the Contractor is entitled to demand an advance payment of 80% of the agreed order value from the Client. The Contractor may withhold their services until payment is made.
  2. The Contractor determines the layout and design of the website to be created to the best of their knowledge and based on the information provided by the Client. The Client may, before signing the contract or no later than one week after the conclusion of the contract, communicate their design and layout preferences in writing via a website concept, or provide their key design and implementation preferences as well as any corporate design/style guide in written form to the Contractor. If the Client does not take advantage of this opportunity and no other written agreement is made, subsequent change requests, particularly those pertaining to:
  • Changes in navigation, e.g., moving from the header to a sidebar element; and/or
  • Complete changes to the corporate design (colors, fonts, font sizes); and/or
  • Changes to the website/webshop template

    will be charged separately to the Client at an hourly rate of $ 75.00 net. Minor changes (e.g., text adjustments, color changes to individual elements, or minor changes in navigation) are excluded from this.


3. For the provision of hosting services, the parties shall conclude a data processing agreement.


4. The Client is obligated to inform the Contractor immediately of any disruptions in the use of the hosting service.

5. The Client assures that they will not store or publish on the contractual storage space any content whose provision, publication, or use violates applicable laws or the rights of third parties.

5. If and to the extent that the Client uses the contractual storage space contrary to the assurances provided for the distribution of illegal content, the Contractor is entitled to block access to such content through appropriate measures.


§ 14 Warranty for Defects in Hosting

  1. The contractor shall be liable for defects in the provided storage space in accordance with applicable statutory provisions under U.S. law. To the extent permitted by law, the contractor’s liability shall be limited to the repair or replacement of the defective storage space. Any further liability shall be excluded unless otherwise required by mandatory provisions of applicable state or federal law.
  2. The Contractor is not liable for the functionality of telephone lines to the server covered by the contract, for power outages, or for server failures outside of their sphere of influence.


§ 15 Warranty for Work Services

  1. The Contractor warrants that the created work (e.g., the website) has been produced in accordance with the contract and is free of defects that eliminate or reduce its value or suitability for the use stipulated in the contract or its customary use.
  2. The Contractor fulfills the warranty obligation by rectification, whereby at least two attempts are allowed, or by delivering a defect-free work (e.g., program version).
  3. The warranty period is 12 months for entrepreneurs and 24 months for consumers, starting from the date of complete acceptance.


§ 16 Acceptance for Work Services

  1. The Client shall examine the services provided by the Contractor upon delivery and declare acceptance in writing to the Contractor no later than 10 days after delivery, unless the work is defective. In such a case, the Client must specifically identify the defect and notify the Contractor in writing. Acceptance cannot be refused due to insignificant defects.
  2. If the Client has not explicitly refused acceptance within the 10-day period by specifying a concrete defect in writing, the Contractor’s performance shall be deemed accepted.


§ 17 Reference Advertising

The Contractor is entitled to name the Client as a reference customer on all of the Contractor's websites, social media platforms, including but not limited to Xing, LinkedIn, YouTube, Vimeo, Google, Facebook, and Instagram, as well as in press releases, unless the Client can demonstrate a legitimate opposing interest.


§ 18 Intellectual Property Rights Violations

The Contractor shall not be held liable by the Client for intellectual property rights violations claimed by third parties if these result from contributions, blogs, posts, or other publications created by the Contractor, which were based on information and made using materials provided by the Client.


§ 19 Amendment of General Terms and Conditions

  1. The Contractor reserves the right to change less significant provisions of these General Terms and Conditions at any time and without providing reasons, as long as such changes do not alter the overall contractual structure.
  2. The amended provisions will be communicated by email at least 15 days before they take effect. If the Client does not object to the amended Terms and Conditions in written form within 15 days of receiving the email, the amended terms shall be deemed accepted.


§ 20 Final Provisions

  1. The Client may only offset claims of the Contractor with undisputed or legally established counterclaims. The Client may exercise a right of retention only if their counterclaim arises from the same contractual relationship.
  2. Amendments or addendums to this agreement, including its annexes, must be made in writing. This clause itself can only be amended in writing.
  3. If both parties are merchants or legal entities under public law, the place of performance shall be the Contractor's registered business location.
  4. Contracts between the Contractor and the Client are governed by the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). Statutory provisions restricting the choice of law and the applicability of mandatory provisions, particularly of the state in which the Client resides as a consumer, remain unaffected.
  5. If the Client is a merchant, a legal entity under public law, or a public-law special fund, the exclusive place of jurisdiction for all disputes arising from contractual relationships between the Client and the Contractor shall be the Contractor's registered business location.
  6. Should individual provisions of this agreement be invalid or become invalid, the remaining provisions remain unaffected. The invalid provision shall be replaced by a valid provision that most closely reflects the economic purpose of the invalid provision.


§ 21 Governing Law and Jurisdiction (U.S. Market)

This agreement shall be governed exclusively by the laws of Germany, excluding the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG), as well as any conflicting referral norms of international private law. The parties agree that all disputes arising from or in connection with this agreement shall be resolved exclusively before the competent courts located at the registered office of the contractor.


To the extent necessary, the parties acknowledge that this choice of law and jurisdiction is fair, reasonable, and consistent with the principles of public policy in the respective country where enforcement is sought, including the United States of America.


In the event that a court in another jurisdiction does not recognize the exclusive application of German law or the jurisdiction of German courts, the parties agree to submit to arbitration under the rules of the International Chamber of Commerce (ICC). The arbitration shall take place in Berlin, Germany, and the language of arbitration shall be English. The decision of the arbitrator(s) shall be final and binding on the parties and enforceable in any jurisdiction.


The parties further agree to cooperate in good faith to ensure the recognition and enforcement of any judgment or arbitral award rendered under this agreement in any relevant jurisdiction.