General terms and conditions
§ 1 General
a.) Scope of application
Unless expressly agreed otherwise, all contracts concluded with Thorit GmbH, Margret-Fusbahn-Straße 3, 71063 Sindelfingen (hereinafter referred to as Thorit GmbH) are based on the following terms and conditions.
In case of changes of the General Terms and Conditions Thorit GmbH will accept further orders of the customer only according to the changed conditions. Conflicting general terms and conditions of the customer do not apply.
b) Contract agreement
Contractual language is German. Customers in the sense of these General Terms and Conditions are exclusively entrepreneurs in the sense of § 14 BGB. By placing an order, at the latest, however, with the start of the project, the customer accepts the following terms and conditions.
c) Conclusion of contract
The conclusion of the contract takes place individually by written offer and acceptance. Subsidiary agreements, assurances and other agreements, which are made before or at the time of placing a written order, require the written form to be effective. Unless otherwise agreed, the customer receives a non-binding offer from Thorit GmbH upon his inquiry. The customer can accept this offer within the period stated in the offer.
With the acceptance the contract is concluded. Assurances, collateral agreements, amendments and supplements to the contract must be made in writing to be effective. The written form requirement in this respect can only be waived in writing. A separate storage of the contract text by Thorit GmbH does not take place, but the contract content results in each case individually from the made agreement.
d) Subsequent amendment of the terms and conditions
Thorit GmbH is entitled to the subsequent adjustment and supplementation of the General Terms and Conditions towards existing business relations, as far as they refer to the supplementation of gaps or the elimination of subsequently occurred considerable imbalance of performance and consideration. Furthermore Thorit GmbH is entitled to change the General Terms and Conditions with a notice period of six weeks in advance.
The customer will be notified of the change by email or in writing. It is considered as approved, if the customer does not object within a period of six weeks after announcement of the change by email or in writing. Thorit GmbH will explicitly point out to the customer the effect of his silence when announcing the change. If the customer objects in due time, Thorit GmbH as well as the customer can terminate the contractual relationship extraordinarily.
§ 2 Performance description
Thorit GmbH will be active in the field of digital marketing, web and software development and branding and design for its clients.
b) Service provision
Thorit GmbH is entitled to have the contract or parts of the contract fulfilled by third parties. These third parties do not become contractual partners of the customer. Excluded from this are services of domain and hosting providers, email service providers, providers of telecommunication and internet services (so called providers) ordered by Thorit GmbH on behalf of the customer or providers of other services which are connected with running costs. These services are to be obtained by the customer on his own name.
c) Delays in performance
Thorit GmbH is not responsible for delays in delivery and performance due to force majeure and due to extraordinary and unforeseeable events, which cannot be prevented by Thorit GmbH even by utmost diligence (this includes in particular strikes, official or judicial orders and cases of incorrect or improper self-delivery despite covering transaction to that effect). They entitle Thorit GmbH to postpone the delivery for a reasonable time.
In case of unavailability due to reasons mentioned above, Thorit GmbH is entitled to withdraw from the contract. In this case Thorit GmbH is obliged to inform the customer immediately about the unavailability and to refund possible already rendered counter-performances immediately.
e) Performance time
The time of performance results from the concrete offer.
If the offered service is defined by a monthly hourly or service quota, it is possible to transfer the quota to the following month if it is not completely used up in the current month. The entitlement to a transfer of hours is limited exclusively to the following month. The expiry of the hourly quota comes into effect if the quota has not been exhausted in the following month either.
f) Duty of proof and confidentiality
Due to internal trade secrets and exclusive knowledge, Thorit GmbH does not owe the customer any obligation to provide evidence with regard to the measures implemented and used. Thorit GmbH will use the access data transmitted by the customer within the scope of the execution of the contract only for the execution of the contract and will not pass on these data.
§ 3 Payment
All prices are exclusive of value added tax. Unless otherwise agreed, the customer has to pay a deposit of 50 % to Thorit GmbH after conclusion of the contract. The exact payment modalities can be taken from the offer.
b) Default of payment
The customer is in default of payment if the payment is not received by Thorit GmbH within two weeks after receipt of the invoice. In case of default of payment interest in the amount of 9 percentage points above the base interest rate of the European Central Bank will be charged. If the customer is in default with his payments, Thorit GmbH reserves the right to charge reminder fees in the amount of 2,50 Euro. The assertion of a claim for damages exceeding this amount remains unaffected.
The customer has the possibility to prove that Thorit GmbH has not suffered any damage or a smaller damage.
c) Right of retention
The customer shall only be entitled to assert a right of retention for counterclaims that are due and based on the same legal relationship as the customer's obligation.
d) SEPA payments and pre-notification
Invoices can be settled via the SEPA direct debit procedure. For this purpose, the customer grants Thorit GmbH a corresponding mandate (SEPA-Basis-Mandat, or if possible a SEPA-Firmen-Mandat). If invoices from deliveries and services are paid via the SEPA-Basis Direct Debit Procedure / - Company Direct Debit Procedure, the customer will receive an advance notice for the direct debit collection. The period for the advance notification (pre-notification) is reduced to 1 day for B2B SEPA direct debits. For CORE, the standard direct debit, the period is reduced to 5 days for an initial direct debit (FRST)/one-off direct debit (OOFF) and to 2 days for a subsequent direct debit (RCUR). The customer assures to provide for the coverage of the account. Costs incurred due to non-payment or reversal of the direct debit are to be borne by the customer, as long as the non-payment or the reversal was not caused by Thorit GmbH.
§ 4 Responsibility of the customer
a) Customer data, rights of third parties and indemnification of Thorit GmbH
The customer is solely responsible for the content and correctness of the transmitted data and information in the case of a customer order. Furthermore, he commits himself not to transmit any data whose contents violate rights of third parties or violate existing laws (e.g., but not conclusively: data protection regulations, personal rights, trademark rights, name rights, other trademark rights or copyrights). The customer confirms with the transfer of data to Thorit GmbH to have complied with all legal regulations. He exempts Thorit GmbH from all claims of third parties, especially in connection with the transmission, processing and utilization of the data, information and other working bases transmitted by him. This also includes the reimbursement of costs of necessary legal representation.
b) Data backup
The customer is jointly responsible for backing up the information sent. He has to make his own data backup. Thorit GmbH cannot be held responsible for the loss of transmitted information of the customer, because Thorit GmbH does not assume any general data backup guarantee.
c) Duty to cooperate
The customer is obliged to provide the cooperation services necessary for the contract so that Thorit GmbH can perform the contractual service. The customer acknowledges the necessity to cooperate in his contract work to the extent that he immediately provides the information and materials necessary for the performance of the contract.
If the customer fails to perform a required duty to cooperate even after Thorit GmbH has requested him to do so and has granted him a reasonable period of time for the performance of the duty which has passed unsuccessfully, Thorit GmbH is entitled to claim a reasonable compensation and/or to terminate the contract extraordinarily.
The amount of compensation is determined on the one hand by the duration of the delay and the amount of the agreed remuneration, on the other hand by what Thorit GmbH saves in expenses as a result of the delay or what it can acquire by using its manpower otherwise.
The customer is obliged to keep secret all business and trade secrets designated as confidential, which are disclosed and/or become known to him by Thorit GmbH during the execution of the contract.
The customer assures that he does not intend any illegal or immoral activities with the service to be provided by Thorit GmbH.
§ 5 Right of retention
Thorit GmbH reserves the right to withhold the access rights granted by the customer for the same order in case of outstanding due payments until the invoices are settled.
§ 6 Liability
a) Thorit GmbH guarantees the execution of the work with its usual diligence and on the basis of the state of the art of science and technology known to it.
Thorit GmbH is liable without limitation according to the statutory provisions only for damages which are based on a grossly negligent or intentional breach of duty by it or its vicarious agents, as well as for damages which are based on intentional or grossly negligent breaches of contract as well as fraudulent intent. The liability is limited to the amount of the order sum, the liability for consequential damages and financial losses (e.g. loss of profit) is excluded. Irrespective of this, it shall always be liable for damage to life and health and claims under the Product Liability Act for which it is responsible. In all other respects, the statutory provisions shall apply.
§7 Copyright and rights of use
a) Rights of use and scope of use
With the payment of the services rendered by Thorit GmbH, the customer only secures the rights of use of the service product for the duration of the contract, but does not acquire any property rights or copyrights. The customer is not entitled to transfer the rights of use granted by Thorit GmbH against payment or free of charge to third parties or to pass them on in any other way without the explicit consent of Thorit GmbH.
b) Processing by third parties is not allowed without the consent of Thorit GmbH.
c) The above also applies to intermediate results.
b) Backup copies
The customer is entitled to make and keep back-up copies of the works created by Thorit GmbH on his behalf for his own use only.
c) Copyright notices
Without a separate agreement the customer is not allowed under any circumstances to remove or to change copyright texts, author's references or comparable author's designations of Thorit GmbH which are located at the works and works.
§ 8 Term and termination
The term and termination of the respective contract result from the specific offer. Unless otherwise agreed in the offer, contracts are automatically extended by the respective contract term.
§ 9 Usability of the services-Further development of the service / Availability
Thorit GmbH endeavors to adapt its services to current technical developments. Therefore, Thorit GmbH reserves the right to change the agreed services, as far as such changes do not affect the core services and are reasonable for the contracting party under consideration of the interests of the contracting party. Thorit GmbH is also entitled to interrupt the website operation partially or completely within reasonable limits for the purpose of updating and maintenance. Furthermore, Thorit GmbH does not guarantee the availability of the offered services at any time and does not assure that the offered services or parts thereof are made available and can be used from any location.
§ 10 Mention by references
Thorit GmbH has the right to publish the customer on its own reference list on the website or other advertising materials by mentioning the company name and the company mark (logo), as well as screenshots of the website and changes of visibility progressions and other KPIs which serve to clarify the success. There is no obligation to be included in the reference list.
§ 11 Liability
Thorit GmbH as well as its legal representatives and vicarious agents are only liable for intent. Only if essential contractual obligations (consequently such obligations, the compliance with which is of special importance for the achievement of the purpose of the contract) are concerned, liability is also assumed for gross or slight negligence. In this case, liability is limited to the foreseeable, contract-typical damage.
b) Reservation of liability
The above exclusion of liability does not apply to liability for damages arising from the
injury to life, limb or health. Also the provisions of the
Product Liability Act shall remain unaffected by the exclusion of liability.
c) Data backup
Thorit GmbH performs effective data backups within the scope of the service provision, but does not assume any general data backup guarantee for the data transmitted by the user. The user himself is also responsible for creating adequate backups of his data in regular intervals to prevent data loss. Thorit GmbH will exercise reasonable care in providing the agreed service and will provide the data backup with the required expertise. However, Thorit GmbH does not assure that the stored contents or data, which are accessed by the user, are not damaged or falsified accidentally, are lost or partly removed.
§ 12 Final provisions
The exclusive place of jurisdiction for all legal disputes between Thorit GmbH and the customer arising from the contractual relationship is agreed to be the place of business of Thorit GmbH in Sindelfingen, provided that the customer is a merchant, a legal entity under public law or a special fund under public law or provided that the customer has no place of jurisdiction in the Federal Republic of Germany.
b) Choice of law
German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
c.) Severability clause
The invalidity of individual provisions shall not affect the validity of the remaining General Terms and Conditions.