Terms and Conditions
General Terms and Conditions of Q3i GmbH & Co. KG
1 Scope of Services and Cooperation
1.1 These General Terms and Conditions form a supplement to a quotation (or contract) for a service provided by Q3i GmbH & Co.KG (hereinafter referred to as ‘Q3i’).
1.2 In accordance with these provisions, Q3i undertakes to provide the offered service to the customer.
1.3 In addition to the provisions of these General Terms and Conditions, there are further agreements that form part of the performance of the contract: The scope of services describes the services to be provided by Q3i that are necessary for the performance of the contract and, where applicable, the nature of the work to be delivered. (The scope of services is defined either by a specification document, if a separate contract exists, or by meeting minutes together with the associated quotation and service description, if no separate contract exists.) The further agreements also include: a timetable for Q3i’s respective services and the customer’s obligations to cooperate, and, where applicable, a list of materials to be procured by the customer for Q3i as part of the performance of the contract.
1.4 The customer accepts the scope of work by accepting the contract or the quotation. The timetable and the order list may be accepted at a later date.
1.5 Q3i shall notify the client of the completion of the programming services; for the purposes of acceptance, Q3i shall provide the client with a CD or email containing the programming services.
1.6 The customer undertakes to test the programming services within 10 days of the relevant briefing to verify their functionality and compliance with the agreed requirements. Unless the customer has sent Q3i a written notice of defects within this testing period, setting out in detail the defects identified, the programming services shall be deemed to have been accepted.
1.7 The parties shall cooperate in a spirit of trust and shall inform each other immediately in the event of any deviations from the agreed procedure or any doubts as to the correctness of the other party’s approach.
1.8 If the client realises that its own information and requirements are incorrect, incomplete, ambiguous or unfeasible, it must inform Q3i of this and the consequences apparent to it without delay.
1.9 The contracting parties shall designate to each other contact persons and their deputies who shall be responsible for and competently manage the performance of the contractual relationship on behalf of the party designating them.
1.10 The parties must notify one another without delay of any changes to the designated persons. Until such notification is received, the previously designated contact persons and/or their deputies shall be deemed authorised to make and receive declarations within the scope of their existing powers of representation.
1.11 The contact persons shall consult at regular intervals regarding progress and obstacles in the performance of the contract, so that they may, where necessary, intervene to steer the performance of the contract.
2 The Customer’s Obligations to Cooperate
2.1 The Customer shall assist Q3i in the performance of its contractually agreed services. This includes, in particular, the timely provision of information, data, and hardware and software, in so far as the Customer’s obligations to cooperate so require. The client shall provide Q3i with detailed instructions regarding the services to be provided by Q3i.
2.2 The customer shall make available the necessary number of its own employees, who possess the requisite specialist knowledge, for the performance of the contractual relationship.
2.3 Where the Customer has undertaken to procure materials (image, sound, text or similar) for Q3i as part of the performance of the contract, the Customer shall make these available to Q3i in accordance with the approved order list and schedule in a standard, immediately usable format, preferably digital. If the material provided by the Customer needs to be converted into another format, the Customer shall bear the costs incurred in doing so.
2.4 Insofar as the source material is subject to third-party copyright, trade mark rights and/or other industrial property rights, the Customer shall ensure that it holds the licences required for the performance of this contract; in particular, that it is authorised to digitise images, photographs, films, logos, symbols and other representations, designs and information, to incorporate them into the service and use them as part thereof, and/or to grant these authorisations to Q3i for the performance of this contract. The customer shall therefore ensure that Q3i obtains the rights necessary to use these materials.
2.5 The Customer shall carry out any necessary cooperation at its own expense.
3 Involvement of third parties
The Customer shall be liable for third parties who, at the Customer’s instigation or with the Customer’s acquiescence, carry out work for the Customer within Q3i’s field of activity, in the same way as for vicarious agents. Q3i shall not be liable to the Client if, due to the conduct of any of the aforementioned third parties, Q3i is unable to fulfil its obligations towards the Client in whole or in part, or is unable to do so in a timely manner.
4 Deadlines
4.1 Deadlines for the provision of services may only be confirmed on Q3i’s behalf by the designated contact person.
4.2 The contracting parties shall, where possible, set deadlines in writing. Deadlines, failure to meet which causes a contracting party to be in default without the need for a formal notice pursuant to Section 286(2) of the German Civil Code (binding deadlines), must always be set out in writing and designated as binding.
4.3 Q3i shall not be liable for delays in performance due to force majeure (e.g. strikes, lockouts, official orders, general telecommunications disruptions, etc.) or circumstances within the customer’s sphere of responsibility (e.g. failure to provide necessary cooperation in a timely manner, delays caused by third parties for which the customer is responsible, etc.) are beyond Q3i’s control and entitle Q3i to postpone the provision of the affected services for the duration of the hindrance plus a reasonable start-up period. Q3i shall notify the customer of any delays in performance due to force majeure.
5 Changes to Services
5.1 Should the customer wish to amend the contractually agreed scope of the services to be provided by Q3i, they shall submit this request for amendment to Q3i in writing. The further procedure shall be governed by the following provisions. In the case of requests for changes that can be assessed quickly and are likely to be implemented within 8 working hours, Q3i shall waive the procedure set out in paragraphs 2 to 5.
5.2 Q3i shall assess the implications of the requested change, in particular with regard to remuneration, additional costs and deadlines. If, following this assessment, Q3i determines that the services to be provided cannot be carried out, or can only be carried out with a delay, Q3i shall inform the client of this and point out that the change request can only continue to be assessed if the services in question are postponed for an initially indefinite period. If the client agrees to this postponement, Q3i shall carry out the assessment of the change request. The client is entitled to withdraw their change request at any time; the change procedure then comes to an end.
5.3 Following review of the change request, Q3i shall explain to the client the implications of the change request for the agreements in place. This explanation shall either contain a detailed proposal for implementing the change request or details as to why the change request cannot be implemented.
5.4 The contracting parties shall consult without delay on the content of any proposal for implementing the change request and shall append the outcome of a successful consultation to the text of the agreement to which the change relates, in the form of a supplementary agreement.
5.5 If no agreement is reached or if the amendment procedure is terminated for any other reason, the original scope of services shall remain in force. The same shall apply in the event that the customer does not agree to a postponement of the services for the purpose of carrying out the review in accordance with paragraph 2.
5.6 The deadlines affected by the amendment procedure shall be postponed as necessary, taking into account the duration of the audit, the duration of the consultation on the proposed amendment and, where applicable, the duration of the amendment requests to be carried out, plus a reasonable start-up period. Q3i shall notify the client of the new dates.
5.7 The client shall bear the costs arising from the change request. These include, in particular, the review of the change request, the preparation of a proposed amendment and any downtime. Where the parties have agreed on daily rates, the costs shall be calculated in accordance with these; otherwise, they shall be calculated in accordance with Q3i’s standard rates.
5.8 Q3i is entitled to amend or deviate from the services to be provided under the contract if, taking into account Q3i’s interests, the amendment or deviation is reasonable for the client and in the client’s best interests.
6 Remuneration
6.1 The client shall bear travel costs (€0.35 per kilometre for car journeys; €0.35 per kilometre per person for train journeys), accommodation costs and any fees charged by third parties arising in the course of the contract’s performance. Travel time alone shall not be remunerated.
6.2 Q3i’s remuneration is generally based on the time spent, which shall be invoiced. Unless otherwise agreed, the remuneration for the time spent shall be determined by Q3i’s current rates. Q3i is entitled to reduce the remuneration rates on which the agreements are based at its reasonable discretion (Section 315 of the German Civil Code (BGB)). Any increases must be notified in advance. Cost estimates or budget plans drawn up by Q3i are non-binding.
6.3 If the parties have not reached an agreement on the remuneration for a service provided by Q3i, the provision of which the customer could reasonably have expected, given the circumstances, to be subject to remuneration, the customer shall pay the remuneration customary for such a service. In case of doubt, the rates charged by Q3i for its services shall be deemed customary.
6.4 All contractually agreed fees are exclusive of statutory VAT.
7 Rights
7.1 Q3i grants the Customer a non-exclusive right, unlimited in terms of geographical scope and duration, to use the services provided in accordance with the contract. Where software forms part of the services, Sections 69(d) and (e) of the German Copyright Act (UrhG) shall apply.
7.2 Any use beyond that described in paragraph 1 is prohibited. In particular, the Customer is prohibited from granting sub-licences, letting out the services or exploiting them in any other way. The Customer is only permitted to reproduce a service for multiple use with the prior consent of Q3i.
7.3 Until payment of the full fee has been made, the Customer is only permitted to use the services provided on a revocable basis. Q3i may revoke the use of any such services for which the Customer is in arrears with payment for the duration of the delay.
7.4 In the event of late payment by the customer, Q3i is entitled to claim a flat-rate compensation for late payment amounting to 9.00 per cent per annum above the base rate in accordance with Section 247 of the German Civil Code (BGB). The right to prove further claims is reserved. The customer has the right to prove that Q3i has incurred no loss, or a lower loss, as a result of the delay. The flat-rate compensation shall then be reduced or waived accordingly.
7.5 If the delay in payment lasts for more than 30 days or if, despite a written reminder, the customer remains in arrears with an amount exceeding EUR 500.00, Q3i shall be entitled to withdraw from the contract. Q3i reserves the right to claim damages and to assert any other statutory claims.
7.6 Q3i is entitled to retain a copy of the work for archiving purposes. Q3i undertakes not to use and/or exploit the source material provided by the customer, either for its own purposes or for those of third parties, without the customer’s express consent, and not to produce any work for third parties that is identical in design to the work produced for the customer. Otherwise, Q3i is free to use the know-how developed within the scope of the contract.
7.7 Q3i may name the Customer as a reference client on its website or in other media and display reduced-size images of the Customer’s website or hyperlinks to the Customer’s website for promotional purposes. Q3i may also publicly reproduce the services provided or refer to them for demonstration purposes, unless the client can assert a legitimate interest to the contrary.
7.8 Q3i is entitled to include a reference to its authorship in the service provided to the client (e.g. a Q3i link on the client’s website created by Q3i).
8 Infringement of Intellectual Property Rights
8.1 Q3i shall, at its own expense, indemnify the client against all claims by third parties arising from infringements of intellectual property rights (patents, licences and other intellectual property rights) for which Q3i is at fault. The client shall inform Q3i without delay of any claims asserted by third parties. If the client fails to inform the agency without delay of the claims asserted, the right to indemnification shall lapse.
8.2 In the event of infringements of intellectual property rights, Q3i may – without prejudice to any claims for damages by the Client – at its own discretion and at its own expense, following prior consultation with the Client, make changes to the service in question which, whilst safeguarding the Client’s interests, ensure that the infringement of intellectual property rights no longer exists
8.3 Should third parties assert against Q3i that the inclusion of material supplied by the customer in the service infringes third-party copyright, trade mark rights and/or industrial property rights, Q3i shall inform the customer of this immediately in writing. The Customer undertakes to indemnify Q3i against any liability towards third parties in this regard, to assist Q3i in its legal defence and, at Q3i’s request, to bear any amounts of damages plus the costs of reasonable legal defence.
9 Withdrawal
The Customer may only withdraw from the contract on the grounds of a breach of duty not relating to a defect in the goods purchased or the work performed if Q3i is responsible for such breach of duty.
10 Warranty
10.1 Q3i warrants that the work conforms to the specifications set out in the scope of work.
10.2 The customer is advised that, given the current state of the art, it is not possible to rule out errors in data processing programmes under all conditions of use. Such errors do not entitle the customer to demand rectification.
10.3 Any warranty provided by Q3i does not extend to defects caused by external influences or by a failure to comply with the terms of use contained in the service. The warranty shall lapse if the customer modifies the service themselves or has it modified by third parties without Q3i’s consent, unless the customer can prove that the defects were not caused by such modifications and that rectification of the defects is not unreasonably impeded by the modifications.
10.4 The customer’s claims for damages arising from Q3i’s delay or inability to perform are limited to the value of that part of the delivery or service which, due to the inability to perform or the delay, cannot be used as contractually intended. This shall not apply where liability is mandatory in cases of wilful misconduct or gross negligence. Q3i shall only be liable for slight negligence in the event of a breach of a fundamental contractual obligation (cardinal obligation) and in the event of damage resulting from injury to life, limb or health.
10.5 Q3i shall not be liable for the loss of data and/or programmes to the extent that the damage is attributable to the Customer’s failure to carry out data backups and thereby ensure that lost data can be restored with reasonable effort.
10.6 The above provisions shall also apply in favour of Q3i’s vicarious agents.
10.7 The warranty period begins upon acceptance by the customer and ends after 24 months.
11 Non-solicitation
The Customer undertakes not to poach any employees of Q3i or to employ them without Q3i’s consent during the term of the parties’ cooperation and for a period of one year thereafter. In the event of any culpable breach, the Customer undertakes to pay a contractual penalty, the amount of which shall be determined by Q3i and, in the event of a dispute, reviewed by the competent court.
12 Confidentiality, Press Statements
12.1 Documents provided to the other party, as well as knowledge and experience disclosed, may be used exclusively for the purposes of this contract and must not be made accessible to third parties, unless they are intended to be made accessible to third parties by their very nature or are already known to the third party. Third parties do not include auxiliary persons engaged for the performance of the contractual relationship, such as freelancers, subcontractors, etc.
12.2 Furthermore, the contracting parties agree to maintain confidentiality regarding the content of this contract and the information obtained in the course of its performance.
12.3 The duty of confidentiality shall continue to apply even after the termination of the contractual relationship.
12.4 If a party to the contract so requests, the documents provided by that party, such as strategy papers, briefing documents, etc., shall be returned to it upon termination of the contractual relationship, provided that the other party cannot assert a legitimate interest in these documents.
12.5 Press releases, statements, etc., in which one contracting party refers to the other, are only permitted subject to prior written agreement – including by email.
13 Mediation
13.1 In the event of any disagreements arising from or in connection with the contractual relationship, the parties shall first endeavour to reach a solution through detailed discussions between the relevant contact persons.
13.2 Any disputes that cannot be resolved by the parties shall be settled through a conciliation procedure. If a party refuses to participate in a conciliation procedure, it may bring the matter before the ordinary courts, provided that it has first notified the other party in writing.
13.3 In order to conduct a mediation procedure, the parties shall call upon the mediation body of the Deutscher Multimedia Verband e.V., Kaistrasse 14, 40221 Düsseldorf, with the aim of resolving the dispute in whole or in part, provisionally or definitively, in accordance with its conciliation rules.
13.4 To facilitate the conciliation, the parties mutually waive the defence of limitation for all claims arising from the disputed facts from the date of the application for conciliation until one month after the end of the conciliation proceedings. This waiver has the effect of suspending the limitation period.
13.5 Any deadlines affected by the conciliation proceedings, including the preliminary discussions between the designated contact persons, shall be postponed as necessary, taking into account the duration of the conciliation and, where applicable, the time required to implement the conciliation outcomes, plus a reasonable lead time.
14 Miscellaneous
14.1 The assignment of claims is only permitted with the prior written consent of the other contracting party. Consent must not be unreasonably withheld. The provision of Section 354a of the German Commercial Code (HGB) remains unaffected by this.
14.2 A right of retention may only be asserted on the basis of counter-claims arising from the relevant contractual relationship.
14.3 The contracting parties may only set off claims that have been legally established or are undisputed.
14.4 The services provided by Q3i as a partnership are not exempt from contributions to the Artists’ Social Security Fund, which may result in additional costs.
15 Final Provisions
15.1 All amendments and additions to contractual agreements must be recorded in writing for evidence purposes. Notice of termination must be given in writing. Notifications required to be made in writing may also be sent by email.
15.2 Should any individual provisions of the agreements between the parties be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In such a case, the parties shall replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same applies to any omissions in the agreements.
15.3 The Customer’s general terms and conditions shall not form part of the contract.
15.4 The law of the Federal Republic of Germany shall apply, to the exclusion of private international law and the UN Convention on Contracts for the International Sale of Goods.
15.5 The exclusive place of jurisdiction for all legal disputes arising from or in connection with the contract shall be the registered office of Q3i.