Terms and Conditions

Oliver Zeiger
inMotion - Agentur für Webdesign
Hanauer Landstraße 71
63796 Kahl am Main
- hereinafter referred to as: Contractor -

Part 1 - General Provisions

1.1 General

1.1.1 The Contractor offers the Customer various agency services. The specific scope of services is subject to individual agreements between the Contractor and the Customer.

1.1.2 The Contractor does not enter into contracts with consumers or private individuals.

1.1.3 The Contractor is entitled to commission the required services to subcontractors in its own name and for its own account; such subcontractors may also use subcontractors themselves. Subject to deviating agreements, the Contractor remains the Customer's sole contractual partner. Subcontractors will not be used if it is apparent to the Contractor that their use conflicts with the Customer's legitimate interests.

1.1.4 If, in addition to these Terms and Conditions, further contractual documents in text or written form have become part of the contract, the provisions of such further contractual documents shall prevail over these Terms and Conditions in the event of contradictions.

1.1.5 Deviating terms and conditions used by the Customer shall not be recognized by the Contractor unless the Contractor has expressly agreed to them.

1.2 Customer's Duties to Cooperate

1.2.1 If the Customer provides the Contractor with texts, images or other content for the fulfilment of the commissioned services, the Customer must ensure that such content does not infringe third-party rights (e.g. copyrights, trademark rights, etc.) or other legal provisions. In this context, it is pointed out that, by law, the Contractor is not entitled to provide legal advice to the Customer. In particular, the Contractor is neither obliged nor legally able to review the Customer's business model and/or works created or acquired by the Customer (layouts, graphics, texts, etc.) for compliance with applicable law. In particular, the Contractor will not carry out trademark searches or other checks for conflicts with intellectual property rights in relation to works provided by the Customer. If the Customer gives specific instructions regarding the work to be created, the Customer is responsible for such instructions.

1.2.2 The Customer is obliged to provide all information, data, works (e.g. data for the legal notice, graphics, logos, etc.) and access credentials required for the fulfilment of the order completely and correctly. The Customer must also ensure that the instructions issued by the Customer comply with applicable law.

1.2.3 Subject to deviating individual agreements, the Customer is responsible for procuring the material required for the provision of agency services (e.g. graphics, videos) and must provide it to the Contractor in good time. If the Customer does not provide such material and does not provide any further specifications, the Contractor may, at its own discretion and in compliance with copyright attribution requirements, use image material from common providers (e.g. stock photo providers) or fill the corresponding parts of the website with placeholders.

1.2.4 If an order processing agreement pursuant to Art. 28 GDPR is required for individual order components, both contracting parties undertake to conclude such an agreement, to be provided by the Contractor, before the start of the service provision.

1.2.5 The Contractor shall not be responsible to the Customer in any respect for delays in the implementation of projects caused by delayed necessary cooperation or contribution by the Customer; the provisions under the heading "Liability/Indemnification" remain unaffected.

1.2.6 If the Customer fails to comply with the duties to cooperate under this section, the Contractor may charge the Customer for the additional effort incurred as a result (e.g. costs for stock photos and time spent searching for them).

1.3 Use of Artificial Intelligence (AI)

1.3.1 The Contractor is entitled to use artificial intelligence technologies (AI tools) to create content (e.g. text, image, sound or video) as part of the provision of services. Unless otherwise agreed, all content generated by AI will be reviewed by a natural person after creation and adjusted if necessary. AI tools will not be used if it is apparent to the Contractor that their use conflicts with the Customer's legitimate interests. If the Customer does not want AI technologies to be used for specific projects or parts thereof, the Customer must inform the Contractor of this independently in text form.

1.3.2 The Contractor assures that content created wholly or partly with AI will not infringe the rights of third parties. If exclusive rights of use are to be transferred for content created wholly or partly with the help of AI, the Contractor will ensure that such a transfer of rights of use is possible (e.g. by modifying the AI-generated works in such a way that the required level of originality and therefore copyright protection is achieved).

1.3.3 Separate labelling of AI-generated content is only owed if and to the extent that labelling of the content is legally required or if, at the time the service is provided, it is already foreseeable that a labelling obligation will be legally required in the foreseeable future (e.g. due to provisions in the AI Act). The same applies to notices stating that certain work results were created with the help of artificial intelligence.

Part 2 - Online Presences and Technology

2.1 Website and Shop Creation (Agile)

2.1.1 Unless deviating individual agreements have been made, the creation of new websites/shops or web/shop components, or the extension of existing websites/shops or web/shop components (hereinafter "website creation"), shall be carried out on the basis of agile methods. The remaining provisions of these Terms and Conditions remain unaffected.

2.1.2 The subject matter of website creation contracts between the Contractor and the Customer is generally the development of new websites or the extension of existing websites (e.g. integration of new interfaces or programming of new online applications) in compliance with the Customer's technical and/or design specifications. Website creation contracts concluded between the parties are contracts for work within the meaning of Sections 631 et seq. of the German Civil Code (BGB).

2.1.3 The individually agreed services result from the contract individually concluded between the Contractor and the Customer. For this purpose, the Customer first submits a request to the Contractor with the most precise possible description of the desired website content (design content such as images, layouts, logos, fonts and similar items must be determined and provided by the Customer, subject to deviating agreements). This request constitutes an invitation to the Contractor to submit an offer. The Contractor will examine the Customer's ideas described in the request to the best of its knowledge and belief for completeness, suitability (except legal suitability, in particular with regard to third-party rights), clarity, feasibility and consistency, and will prepare an offer based on the wishes resulting from the Customer's request. A contract between the Contractor and the Customer is only concluded when the Customer accepts the offer.

2.1.4 The Customer may submit customer requests at any time, provided that they are covered by the originally agreed scope of services. Such adjustments become part of the original contract if both contracting parties agree in text form (e.g. by e-mail). Otherwise, the Contractor is only obliged to produce the functions/items listed in the contract or to provide the agreed service. Services beyond this must be agreed and remunerated separately.

2.1.5 As soon as the website has been completed, the Contractor will request acceptance of the website from the Customer.

2.1.6 A prerequisite for the Contractor's work is that all data to be provided by the Customer and required for the implementation of the project (e.g. texts, templates, graphics, fonts) and/or system environments are made available to the Contractor in good time and in a suitable form. The Contractor shall not be responsible to the Customer in any respect for delays in the implementation of projects caused by delayed necessary cooperation or contribution by the Customer.

2.1.7 The review or procurement of rights, the procurement and/or integration of plugins and/or tools (e.g. statistics) or certificates (e.g. SSL/TLS) is owed by the Contractor only if this has been expressly agreed in an individual contract. Subject to deviating express individual agreements, there is no claim to the surrender of graphics, source codes, development documentation, manuals or other supplementary documentation.

2.1.8 Unless otherwise agreed, the created websites are optimized for the current versions of the Chrome, Safari, Firefox and Edge browsers (in each case the last two browser versions). Search engine optimization (SEO) is only owed if expressly agreed.

2.1.9 The Contractor is neither entitled nor obliged to advise the Customer on competition law, consumer law, labelling law or other legal questions within the meaning of the German Legal Services Act. It is therefore the Customer's responsibility to obtain information about the competition, consumer or labelling provisions applicable to the Customer's shop and, if necessary, to have the shop reviewed by a specialized lawyer.

2.1.10 After completion of the websites and/or individual parts thereof, the Contractor may offer the Customer maintenance and support services relating to the websites. However, neither is the Contractor obliged to make such an offer, nor is the Customer obliged to make use of further service offers by the Contractor. Corresponding agreements are exclusively the subject of individual agreements. If no additional maintenance and support services are agreed between the parties, the Customer alone is responsible for the technical maintenance and up-to-dateness of the websites after acceptance. The Contractor shall not be liable to the Customer for any security vulnerabilities exploited for unlawful purposes by third parties due to the use of outdated third-party software (hacking).

2.2 Website and Shop Creation (Requirements and Specifications)

2.2.1 If the parties have agreed that new websites/shops or web/shop components are to be created or existing websites/shops or web/shop components are to be extended (hereinafter "website creation") on the basis of requirements and specifications, the order shall be processed in accordance with this section.

2.2.2 The subject matter of website creation contracts between the Contractor and the Customer is generally the development of new websites or the extension of existing websites (e.g. integration of new interfaces or programming of new online applications) in compliance with the Customer's technical and/or design specifications. Website creation contracts concluded between the parties are contracts for work within the meaning of Sections 631 et seq. BGB.

2.2.3 The scope of the services to be provided by the Contractor is determined, on the one hand, by individual contractual agreements between the parties and, on the other hand, by detailed requirements prepared by the Customer and the specifications based on them. The Contractor will review the Customer's ideas described in the requirements to the best of its knowledge and belief for completeness, suitability (except legal suitability, in particular with regard to third-party rights), clarity, feasibility and consistency. If the Contractor recognizes that the requirements are not suitable for the creation of a website, the Contractor will inform the Customer without delay and submit a corresponding proposal for supplementing and/or adapting the requirements. The Customer must comment on any proposals by the Contractor regarding the requirements within a reasonable period in writing or text form and ultimately confirm the contents of the requirements to the Contractor in a binding manner in writing or text form. If the parties agree on the requirements, their contents become part of the contract.

2.2.4 On the basis of the requirements, the Contractor prepares specifications that primarily describe the technical and/or design implementation of the requirements. After completion, the Contractor submits the specifications to the Customer for acceptance. The Customer is entitled to reject the specifications prepared by the Contractor and to communicate requests for changes or adjustments. The Contractor undertakes to submit a maximum of two alternative proposals, taking the Customer's wishes into account. If the Customer ultimately does not agree with the Contractor's final proposal, either the Customer or the Contractor may terminate the contractual relationship for good cause or withdraw from the contract, insofar as legally possible. In this case, the fees and/or expenses incurred by the Contractor in connection with the requirements and/or specifications must be reasonably remunerated or reimbursed by the Customer.

2.2.5 If the specifications are accepted by the Customer, the services described therein are deemed finally agreed between the parties. Any deviation from the contents of the specifications accepted by the Customer requires an express individual agreement between the parties. The Contractor does not provide any services beyond those described in the specifications accepted by the Customer. Likewise, the Contractor generally does not provide fewer services than those described in the specifications accepted by the Customer. After acceptance of the specifications by the Customer, the Contractor develops and programs the websites in compliance with the agreed specifications.

2.2.6 In addition to the specifications, the Contractor provides the Customer with a time and work schedule. The contents and specifications of this time and work schedule become part of the contract unless the Customer objects without delay. The Contractor undertakes to hand over the finished website or parts thereof to the Customer by the final date stated in the time and work schedule on a suitable data carrier and/or to send it by e-mail and/or to upload it to a server specified by the Customer. The details of the handover or upload of the finished websites are otherwise subject to individual contractual agreements between the parties.

2.2.7 A prerequisite for the Contractor's work is that all data to be provided by the Customer and required for the implementation of the project (e.g. texts, templates, graphics) and/or system environments are made available to the Contractor in good time and in a suitable form. The Contractor shall not be responsible to the Customer in any respect for delays in the implementation of projects caused by delayed necessary cooperation or contribution by the Customer.

2.2.8 As soon as the website has been completed, the Contractor will request acceptance of the website from the Customer. If necessary, a test phase may be agreed before acceptance. If the Customer discovers errors before acceptance or during an agreed test phase, the Customer must notify the Contractor of these errors in writing or text form. The Contractor will endeavor to correct the errors professionally. For this purpose, the Contractor may provide temporary workarounds.

2.2.9 The review or procurement of rights, the procurement and/or integration of plugins and/or tools (e.g. statistics) or certificates (e.g. SSL/TLS) is owed by the Contractor only if this has been expressly agreed in an individual contract. Subject to deviating express individual agreements, there is no claim to the surrender of graphics, source codes, development documentation, manuals or other supplementary documentation.

2.2.10 Unless otherwise agreed, the created websites are optimized for the current versions of the Chrome, Safari, Firefox and Edge browsers (in each case the last two browser versions). Search engine optimization (SEO) is only owed if expressly agreed.

2.2.11 The Contractor is neither entitled nor obliged to advise the Customer on competition law, consumer law, labelling law or other legal questions within the meaning of the German Legal Services Act. It is therefore the Customer's responsibility to obtain information about the competition, consumer or labelling provisions applicable to the Customer's shop and, if necessary, to have the shop reviewed by a specialized lawyer.

2.2.12 After completion of the websites and/or individual parts thereof, the Contractor may offer the Customer maintenance and support services relating to the websites. However, neither is the Contractor obliged to make such an offer, nor is the Customer obliged to make use of further service offers by the Contractor. Corresponding agreements are exclusively the subject of individual agreements. If no additional maintenance and support services are agreed between the parties, the Customer alone is responsible for the technical maintenance and up-to-dateness of the websites after acceptance. The Contractor shall not be liable to the Customer for any security vulnerabilities exploited for unlawful purposes by third parties due to the use of outdated third-party software (hacking).

2.3 Maintenance and Support of Websites / Shops

2.3.1 After completion of the websites and/or individual parts thereof, the Contractor may offer the Customer maintenance and support services relating to the websites (hereinafter "maintenance contracts"). The Contractor may also offer maintenance for third-party websites. However, neither is the Contractor obliged to make such an offer, nor is the Customer obliged to make use of further service offers by the Contractor. Corresponding agreements are exclusively the subject of individual agreements.

2.3.2 Maintenance contracts cover the rectification of functional faults and event-related updating of the website for common web browsers in their current version. Further services, such as regular maintenance, may be agreed by individual contract where applicable.

2.3.3 The Contractor shall not be liable for functional faults and incompatibilities caused by unauthorized changes by the Customer or based on other errors that do not fall within the Contractor's area of responsibility; the provisions under "Liability/Indemnification" remain unaffected.

2.3.4 Subject to deviating agreements, maintenance only covers technical updating of the website, not content updating. Subject to deviating individual agreements, the Contractor does not in particular owe the updating of the legal notice or privacy policy.

Part 3 - Creation and Design of Content

3.1 Text Creation / Copywriting

3.1.1 The Contractor creates texts for the Customer, including but not limited to press releases, website articles and advertising copy. The contents of these texts are determined by individual contract.

3.1.2 As soon as the agreed texts have been completed, the Contractor will submit them to the Customer for approval and acceptance. Unless otherwise agreed, the Customer is entitled to two correction rounds. Complaints regarding stylistic design or the integration of new information into the text are generally excluded after the second correction round. If the Customer requests further changes beyond this, the Customer must bear the additional costs.

3.1.3 If the Contractor has been commissioned with publication, the texts will be published only after approval by the Customer, subject to deviating agreements; approval also constitutes acceptance of the texts. In the case of press releases, a distribution date will also be set after approval, on which they are to be transmitted to the media. If the Customer publishes the texts itself or is to publish them, the Customer must accept the texts beforehand. If the Customer publishes the texts before acceptance, publication is deemed acceptance.

3.1.4 The Contractor shall be liable for errors discovered after approval/acceptance only in accordance with the provisions under the heading "Liability/Indemnification".

3.2 Design and Conceptualization of Graphics and Logos (Designs)

3.2.1 By agreement with the Customer, the Contractor undertakes the conceptualization and design of graphics and/or logos (hereinafter "designs").

3.2.2 For this purpose, the Customer first submits a request to the Contractor with the most precise possible description of the desired designs. This request constitutes an invitation to the Contractor to submit an offer. The Contractor will examine the Customer's ideas described in the request to the best of its knowledge and belief for completeness, suitability (except legal suitability, in particular with regard to third-party rights), clarity, feasibility and consistency, and will prepare an offer based on the wishes resulting from the Customer's request. A contract between the Contractor and the Customer is only concluded when the Customer accepts the offer.

3.2.3 A prerequisite for the Contractor's work is that the Customer provides all data required for the implementation of the project (color definitions, etc.) to the Contractor completely and in a suitable form before the start of the order. If the Customer fails to comply with this obligation, the Contractor may charge the Customer for the resulting time expenditure.

3.2.4 Unless otherwise agreed, the Customer is entitled to two correction rounds for each individual design. After these correction rounds have been carried out, requests for adjustments and complaints, especially regarding artistic design, will no longer be considered. If the Customer requests further changes after the agreed correction rounds have been carried out, the Contractor may create these for the Customer against an additional fee to be agreed.

3.2.5 As soon as the agreed design has been completed, the Contractor will request acceptance of the work from the Customer. The designs will be sent to the Customer in a common file format.

3.2.6 The Contractor grants the Customer the rights of use to the designs required for the respective purpose. Subject to deviating provisions, a temporally, geographically and substantively unrestricted exclusive right of use is granted for the creation of logos; however, individual graphic elements of the logos may be used for the creation of other works, provided that this does not create a likelihood of confusion with the created logo. For all other designs, a simple right of use is granted subject to deviating individual agreements. The transfer of rights of use by the Customer to third parties requires an individual contractual agreement with the Contractor. Drafts presented during the correction round may not be used, reproduced or passed on to third parties by the Customer, either in the original or in modified form, without the Contractor's express consent.

3.2.7 The rights of use pass to the Customer only after full payment of the remuneration.

Part 4 - Marketing

4.1 SEO Marketing

The Contractor offers the Customer services in the field of SEO marketing, among other things. As part of the provision of services, the Contractor owes only the implementation of measures that, based on the Contractor's own experience, may positively influence search engine rankings or that are expressly ordered by the Customer. This is a service within the meaning of Sections 611 et seq. BGB. A specific result, such as a specific ranking in search engine results, is owed within the scope of SEO services only if it has been expressly guaranteed.

4.2 SEA Campaigns

The Contractor offers the Customer services in the field of SEA campaigns. As part of the provision of services, the Contractor owes only the submission of proposals regarding advertising-effective keywords and, after approval by the Customer, the implementation of the measure (placement of advertisements). This is a service within the meaning of Sections 611 et seq. BGB. A specific result, such as sales figures, is not owed within the scope of SEA services unless expressly guaranteed. The Contractor is not obliged to check the legality of keywords. The Contractor submits proposals to the Customer regarding the booking of keywords. The legal review, in particular with regard to third-party trademark rights, and the approval of the keywords are the responsibility of the Customer before the campaign is carried out. The fee agreed for the services described herein does not include the costs of placing paid advertisements; subject to deviating agreements, these costs must be borne by the Customer.

4.3 Placement of Advertisements

4.3.1 The Contractor supports the Customer with advertisement placements on social media portals, search engines and other media ("advertisements").

4.3.2 The Contractor advises the Customer on how to design advertisements so that they achieve the highest possible visibility. Specific results, such as sales figures or leads, are not owed.

4.3.3 The Contractor also supports the Customer in conceptualizing the texts and images for the advertisements. However, the selection of the content for the advertisements (images, texts, videos, legal notices, etc.) is solely the responsibility of the Customer. The Contractor will not review this content, or the advertisements as a whole, for substantive or legal correctness. In this respect, it is expressly pointed out that the Contractor is not entitled to provide legal advice to the Customer. If, in individual cases, the Contractor nevertheless determines that the content and/or advertisements provided by the Customer violate applicable law, the Contractor may refuse to publish such content or create such advertisements.

4.3.4 All content must be accepted by the Customer and will then be uploaded by the Contractor to the respective advertising channels, whereby the Contractor only owes the technical upload of the content and is responsible only for this; the provisions under "Liability/Indemnification" remain unaffected.

4.3.5 The fee agreed for the services described herein does not include the costs of placing paid advertisements; subject to deviating agreements, these costs must be borne by the Customer.

Part 5 - Miscellaneous Provisions

5.1 Prices and Remuneration

The remuneration for the Contractor's services is subject to an individual contractual agreement between the parties and is generally based on the offer.

5.2 Acceptance

If a work performance has been agreed, the Contractor will request acceptance from the Customer. The acceptance period within the meaning of Section 640 (2) sentence 1 BGB is set at two weeks from the request for acceptance, unless a deviating acceptance period is required in the individual case due to special circumstances, which the Contractor will separately notify to the Customer in such case. If the Customer does not respond within this period or does not refuse acceptance due to a defect, the work is deemed accepted.

5.3 Warranty for Defects

An insignificant defect does not give rise to warranty claims. The Contractor shall choose the type of subsequent performance. The limitation period for defects and other claims is one (1) year; this shortening of the limitation period does not apply to claims arising from intent, gross negligence or injury to life, body or health caused by the Contractor. The limitation period does not begin anew if subsequent performance is carried out within the scope of liability for defects. Otherwise, statutory warranty rights remain unaffected.

5.4 Granting of Rights, Self-Promotion and Right of Mention

5.4.1 After full payment of the order by the Customer, the Contractor generally grants the Customer a simple, non-transferable right of use to the corresponding work results. Further rights may be agreed by individual contract.

5.4.2 Unless otherwise agreed, the Customer expressly grants the Contractor permission to publicly present the project in an appropriate manner for the purpose of self-promotion (references/portfolio). In particular, the Contractor is entitled to advertise the business relationship with the Customer and to identify itself as author on all created advertising materials and in all advertising measures without the Customer being entitled to remuneration for this.

5.4.3 Furthermore, the Contractor is entitled to place its own name, with a link, in an appropriate manner in the footer and legal notice of the website(s) created by the Contractor, without the Customer being entitled to remuneration for this.

5.5 Confidentiality

The Contractor will treat as strictly confidential all business processes that become known to it, in particular but not exclusively print documents, layouts, storyboards, numerical material, drawings, audio tapes, images, videos, DVDs, CD-ROMs, memory cards, passwords, interactive products and other documents containing films and/or radio plays and/or other copyrighted materials of the Customer or companies affiliated with the Customer. The Contractor undertakes to impose the confidentiality obligation on all employees and/or third parties (e.g. suppliers, graphic designers, programmers, film producers, recording studios, etc.) who have access to the aforementioned business processes. The confidentiality obligation applies for an unlimited period beyond the duration of this contract.

5.6 Liability/Indemnification

5.6.1 The Contractor shall be liable without limitation on any legal grounds in cases of intent or gross negligence, in cases of intentional or negligent injury to life, body or health, on the basis of a warranty promise unless otherwise regulated in this respect, or on the basis of mandatory liability, such as under the German Product Liability Act. If the Contractor negligently breaches a material contractual obligation, liability is limited to the damage typical for the contract and foreseeable, unless unlimited liability applies pursuant to the preceding sentence. Material contractual obligations are obligations imposed on the Contractor by the content of the contract for the achievement of the contractual purpose, the fulfilment of which makes the proper performance of the contract possible in the first place and on compliance with which the Customer may regularly rely. Otherwise, liability of the Contractor is excluded. The foregoing liability provisions also apply with regard to the Contractor's liability for its vicarious agents and legal representatives.

5.6.2 The Customer shall indemnify the Contractor against any claims by third parties asserted against the Contractor due to violations by the Customer of these Terms and Conditions or applicable law.

5.7 Final Provisions

5.7.1 Contracts concluded between the Contractor and the Customers are subject to the substantive law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

5.7.2 If the Customer is a merchant, a legal entity under public law or a special fund under public law, or has no general place of jurisdiction in Germany, the parties agree that the Contractor's registered office shall be the place of jurisdiction for all disputes arising from this contractual relationship; exclusive places of jurisdiction remain unaffected.

5.7.3 The Contractor is entitled to amend these Terms and Conditions for objectively justified reasons (e.g. changes in case law, legal situation, market conditions or business or corporate strategy) and while observing a reasonable period. Existing customers will be notified of this by e-mail no later than two weeks before the amendment enters into force. If the existing customer does not object within the period specified in the amendment notice, consent to the amendment is deemed granted. If the customer objects, the amendments do not enter into force; in this case, the Contractor is entitled to terminate the contract for good cause at the time the amendment enters into force. The notice of the intended amendment to these Terms and Conditions will point out the period and the consequences of an objection or failure to object.