General terms & conditions
Terms and Conditions for Services provided by Enida
§ 1 Introduction – Applicability
(1) The Terms and Conditions used by Enida (Nadine Eich) form part of the contract and shall be applied exclusively. Terms and conditions used by the customer which conflict with or deviate from those of Enida are not recognised by Enida unless Enida has agreed to them in writing. Enida does not recognise deviating terms and conditions by performing services for the customer in knowledge of the customer’s conflicting or deviating terms and conditions without objecting to them. Enida’s Terms and Conditions also apply to all future business with the customer if the transaction is a commercial one for both sides. The Terms and Conditions apply as amended at the time of entering the contract.
(2) Enida’s Terms and Conditions only apply towards businesses.
(3) All agreements under the contract need to be put in writing. Oral agreements are only binding if confirmed in writing by Enida.
§ 2 Offers – Commencement of Services
(1) Enida’s offers are non-binding, unless the opposite has been agreed in writing.
(2) If the customer places orders with Enida orally, they are binding. Enida does however have a right that the customer confirms orally placed orders in writing without delay. The same applies to orders placed by e-mail or in another electronic format. An order is deemed to be placed if Enida commences the implementation of the order with the customer’s knowledge even if no agreement has been reached on all issues of the order, as long as the customer does not object. Enida may also accept an order by carrying out the services if an understanding has been reached about all relevant issues of an order.
(3) The subject of Enida’s activity are always the agreed services, not the achievement of a certain economic success.
§ 3 Fees, Payment Terms, Off-Setting, Right of Retention
(1) All fees quoted to businesses are net prices plus value added tax, if applicable and unless otherwise agreed. If a contract is going on for a longer period of time, Enida has the right to demand an appreciation of the agreed fees; the customer shall enter into negations with Enida on this matter.
(2) As far as Enida’s actions/hourly fee extends, the agreed inclusive fee shall apply. Services not included in the relevant service contract have to be paid for additionally by the customer based on the contractually agreed, or in the absence of such an agreement the usual local and reasonable, hourly rates plus necessary expenses.
(3) Enida will invoice all services, if applicable, on a weekly or monthly basis.
(4) The customer’s payment is due immediately. Customers are advised that they will be in default of payment no later than 14 days after receiving the invoice. If customers are in default with a payment, they have to reimburse Enida for any further reminder with a flat fee of 50.00 € for expenses.
(5) Customer may only off-set claims if their counter-claims have been established by a final court ruling, if they are not disputed or if they have been recognised by Enida or if the right to off-set claims is based on the customer’s rights due to services rendered incompletely or poorly under the same contract.
(6) Enida may exercise a right to retention for any claim arising out of the business relationship with the customer.
§ 4 Provision of Services, Term
(1) Enida has the right to use subcontractors and to pass on the order to third parties in full or in part.
(2) Customers may object to their order being passed on if doing so would violate their reasonable interests.
(3) The commencement of a term of service, if one has been provided, requires an understanding about all technical, legal and design questions and the customer’s proper fulfilment of their obligations in due time. Enida retains the right to use the defence of non-performance.
(4) Terms for delivery and services as well as amendments thereof are only binding if agreed in the contract.
(5) Insofar as Enida depends on services of one or more other service providers for providing services, any agreed term of service is subject to other service providers providing services to Enida. This does not apply if the delay is caused by Enida.
§ 5 Customer’s Obligations
(1) Before placing the order, the customer shall inform Enida of all laws, norms and other regulations which Enida must comply with while providing services. Enida does not carry out a legal consultation or evaluation. For these purposes, the customer shall consult with a lawyer.
(2) The customer must provide Enida with the information and material required to perform the services in due time (for example access to platforms, passwords, general or specific instructions, logos to be used, layout samples for messages or other items agreed to be provided by the customer).
(3) The customer shall hand over the required material in a standard digital format which can be used immediately. The customer shall ensure that the necessary rights to use will be granted, in particular rights to copy, disseminate and process insofar as necessary for the services to be provided by Enida. Only a lawyer can evaluate the legal permissibility regarding intellectual property rights and copyrights; this is not part of the order.
(4) Insofar as the customer provides Enida with tangible or intangible items, in particular image, text or sound files, that violate the rights of third parties, the customer shall indemnify Enida against any claims by third parties as soon as Enida thus requests. This includes in particular legal fees.
(5) Customers shall carry out their own back-ups as part of their own protection, in particular before the services commence. Enida is not liable for lost data if the data were still available if the customer would have made proper back-ups.
(6) The customer agrees that Enida will use the services provided to the customer as reference with the customer’s name and logo.
(7) The customer shall refrain from directly or indirectly hiring, employing, entering into a contract for services or engage in any other way employees, sub-contractors or service providers ofEnida for two years. If customers violate this provision with culpability, they have to pay liquidated damages of 5,000 € for each case. Enida retains the right to file for further damages, with the liquidated damages being set-off against the ultimate damages.
(8) Enida is responsible for the execution of the tasks included in the service contract and is not liable for the task result. The customer is therefore obligated to monitor Enida’s work on a regular basis.
§ 6 Default of Acceptance and Customer’s Liability
(1) If the customer is in default of accepting Enida’s services, the customer shall continue to pay the fees until the contract will be terminated. Enida shall have to take into consideration saved expenses and fees gained by selling its capacities to other customers. The customer is advised that Enida works on a project basis and does not accept more than a certain number of simultaneous projects.
(2) If information or documents like access codes, layouts or instructions are not provided in due time and in full, Enida may refrain from commencing with the provision of services under paragraph 4. If we or our employees have to spend waiting times due to the customer’s fault, these times will be invoiced like working time.
(3) Insofar as customers fail to abide by their obligation to cooperate and to provide information, the customers shall bear the relevant additional costs. Enida is not liable for losses that result from the lack of cooperation or from the transmission of wrong or incomplete information.
§ 7 Rights to the Result of the Work
(1) Insofar as the services provided by Enida will create rights that are subject to intellectual property protection, the customer obtains the simple licence to use the result of the work for contractual purposes. If the customer desires further rights, in particular the right to copy, to make accessible, to publish, to amend, to process or other rights of use, these rights shall earn Enida an additional fee.
(2) Insofar as Enida has a copyright to the results of the work, the customer shall name Enida as the author, unless something different has been agreed contractually.
§ 8 Termination
(1) Each respective agreement with the contractor begins upon receipt of the assignment confirmation and lasts for the agreed period. The contract shall be for an initial period of 3, 6 or 12 months depending on the agreed duration (basic term).
(2) The contract automatically renews for the duration of the basic term, unless either party has terminated the contract by giving at least 1 month’s notice in writing to the other party. The timeliness of the cancellation depends on the time of receipt. The contractor and the client agree on an exceptional right of termination within the first four weeks of the initial basic term: either party may cancel the agreement within these four weeks at any time, without reason, by written notice and with immediate effect. The timeliness of the cancellation again depends on the time of receipt. This does not affect the right to terminate in exceptional cases.
(3) If the customer terminates the contract, Enida’s services will be invoiced pro-rata until the effective day of termination. The customer shall also reimburse the commercially reasonable costs to Enida which Enida can prove have arisen because of the terminated part of the services and for the direct purpose of providing these services and which were or are not reasonably avoidable.
§ 9 Liability
(1) Irrespective of the legal basis for the claims, Enida is liable for intentional and grossly negligent actions as well as in cases of culpable harm to life, body and health or in cases of the violation of the Products Liability Act regarding warranted characteristics; this liability is unlimited.
(2) Enida is not liable at all in cases of light negligence of non-essential contractual duties. In cases of violations of non-essential contractual duties, Enida’s liability is limited to the typical losses foreseeable at the time of the conclusion of the contract. Essential contractual obligations are such obligations protecting essential rights of the customer, i.e. which the contract has to grant to the customer based on its content and purpose, as well as obligations the fulfilment of which enables the performance of the contract and of which the customer may usually expect that they be respected.
(3) Irrespective of the legal basis for the claims, Enida is not liable beyond these explicit terms. The restriction of liability also applies to Enida’s employees as well as to itsvicarious agents and sub-contractors. These rules do not lead to a reversal of the burden of proof.
§ 10 Rights of Third Parties
(1) If Enida carries out an order on behalf of the customer and according to the customer’s instructions and the customer provides materials, in particular media (text, photos, audio etc.), the customer guarantees that the provided materials do not violate any third-party rights.
(2) If a third party files a claim against Enida for violation of third-party rights in such a case, the customer shall indemnify Enida against such claims as soon as Enida thus requests. The obligation to indemnification extends to all necessary expenses (in particular legal fees) incurred by Enida in connection with a third party’s claims.
§ 11 Deterioration of the Customer’s Financial Situation
(1) If after the conclusion of the contract Enida learns of facts which put the customer’s liquidity in doubt, Enida may demand the full payment of the agreed fees or the posting of an adequate security before proceeding with the order.
(2) If the customer is in default regarding the payment of an invoice, Enida may suspend any further services until the fees have been paid or an adequate security has been posted for the remaining fees. If the customer does not comply with the demand for payment or for posting an adequate security within a reasonable deadline, Enida may terminate the contract for cause without any notice period. Enida’s further claims remain unaffected.
§ 12 Delay, Force Majeure
(1) If Enida cannot provide services due to force majeure, its obligation to perform services remains dormant for the time of the disruption.
(2) Force majeure or disruptions of Enida’s or the subcontractors’ business, for example due to riots, strikes, lock-outs, which temporarily prevent Enida from providing services by an agreed date or within an agreed deadline without any culpability on behalf of Enida, extend the term of service by the period of the interruption of services caused by such events. If such a disruption leads to a delay of services of more than two weeks or if the customer reasonably loses interest in receiving the services before, the customer may withdraw from the contract.
§ 13 Confidentiality
(1) Enida’s obligation to confidentiality only covers the customer’s information, data, plans or other documents that have been explicitly marked as confidential.
(2) There is no obligation to confidentiality if the information is general knowledge or if it is/becomes general knowledge without Enida’s fault, if Enida has obtained the confidential information independently and without the customer’s contribution, or if disclosure is required by law or by a government body based on statute.
(3) Enida and an authorised third person obligate themselves to deal with all information, data and passwords strictly in a confidential manner.
§ 14 Mediation
(1) In the case of a dispute based on the business relationship between Enida and the customer, the parties shall strive to find an amicable solution. If no agreement can be reached, they agree to use mediation to solve their differences prior to filing a legal action. The possibility of filing for an injunction remains unaffected.
(2) If one party requests a proceeding of mediation from the other party, both parties shall agree on a mediator within eight days. If no agreement is reached within that time, an attorney who works as a mediator – preferably one offering online mediation – shall be appointed by the president or one of his/her deputies of the Bar Association with jurisdiction for the business address of Enida upon the request by either party and with binding effect on the other party. This shall also be the venue for the mediation in case the Bar Association does not propose an online mediator. The language of the mediation proceeding shall be German, unless all participants agree on a different language.
(3) Judicial redress (or an alternatively agreed arbitration proceeding, if applicable) is only allowed once the mediation has failed because (a) both parties declare the mediation to be over, (b) one party refuses further negotiations after the first mediation session, (c) the mediator declares that the mediation has failed or (d) no agreement can be reached within three months from the first mediation session, unless both parties agree to extend the deadline.
(4) The costs of an unsuccessful mediation shall be shared between both parties internally at equal parts and shall be paid to the mediator in equal parts. Notwithstanding this clause regarding the relationship towards the mediator, both parties retain the right to try to get these costs and the costs of legal counsel for the mediation proceeding awarded in a subsequent judicial proceeding; the costs will then be awarded by the court. If there is an agreement, it shall include a ruling on costs.
§ 15 Data Protection, Venue, Place of Performance
(1) In its capacity as the entity responsible for data protection, Enida guarantees that the collection, storage, amendment, transfer, blocking, deletion and use of the customer’s personal data with Enida shall always occur in line with the applicable data protection regulations and other statutory rules in order to protect the customer’s personal data. The customer’s personal data are only passed on to service partners that are part of the performance of the contract, like sub-contractors, hosts and other third parties. If the customer’s personal data are passed on to third parties, this is limited to the required minimum. By entering into the contract, customers declare their consent to the collection, processing and use of their personal data in accordance with the outlined guidelines. Customers have the right to receive information about the data stored about them free of charge. Customers may also at any time withdraw their consent to the storage of their personal data with effect for the future. In such a case, the personal data about the customer will be deleted, unless the relevant data are still required to perform obligations under the concluded contract or unless statutory rules prevent the deletion. In this case the deletion is replaced with the blocking of the personal data.
(2) If the customer is a business, the venue for all litigation is the city where Enida is registered, with Enida having the right to sue the customer at the venue of its residence or business address.
(3) Unless the order confirmation or the contract state otherwise, Enida’s place of business is the place of performance as well as the venue for all litigation.