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dxm GmbH & Co. KG

Terms and conditions

This English version is a translation for your convenience. In legal terms, only the German original applies.

§ 1 Application

1. dxm GmbH & Co. KG, Talstraße 24, 40217 Düsseldorf, (hereinafter referred to in short as “dxm”) develops, among other things, web, print and film works (hereinafter collectively referred to as the “work(s)”) for clients (hereinafter referred to as the “client”) and additionally offers service and maintenance services that can be booked subsequently. These activities (hereinafter collectively referred to as the “service”) are the subject matter of the following general terms and conditions, which apply exclusively to all contracts with entrepreneurs as clients. An entrepreneur within the meaning of Section 14 BGB (German Civil Code) is any natural or legal person or partnership with legal capacity which, when concluding a legal transaction, acts in the exercise of its commercial or self-employed professional activity.

2. The contractual relationship between dxm and the client is governed exclusively by these general terms and conditions in the version applicable at the time the contract is concluded. They apply to services which are rendered by dxm to the client, irrespective of the respective type of contract and of whether these are framework agreements, individual contracts or new or repeated contracts. Conditions of the client deviating therefrom are not recognised, but apply only in the case of express prior written consent by dxm

§ 2 Scope of services

1. The scope of the service of dxm is determined directly by the respective quotation (where applicable together with the specification of services) and the order confirmation (where applicable together with its annexes). It is presumed that the quotation and the order confirmation are complete and correct in content and that they correctly reflect the subject matter of the service.

2. The content of the service is conclusively governed by the quotation and the order confirmation. Any deviation therefrom requires the written form.

3. dxm renders the services in accordance with the requirements and specifications communicated by the client. With regard to the creative and artistic elaboration and implementation, however, dxm has freedom of design and the right of final decision within the framework of the client's specifications. 4. dxm is entitled to use carefully selected subcontractors for the execution of the order without the consent of the client.

§ 3 Conclusion of contract

1. dxm submits a binding quotation to the client in written form. The contract comes into existence upon receipt by dxm of the written order confirmation signed by the client in a legally binding manner. Return by post or scanned by e-mail is sufficient for this purpose.

2. For the return of the order confirmation, dxm sets the client a reasonable acceptance period of 14 days from the date of the quotation. After expiry of this period, the late acceptance is deemed to be a new offer, which requires renewed acceptance on the part of dxm.

3. All offers in advertisements, brochures, price lists, etc. of dxm are without obligation and are not deemed to be a “quotation” in the legal sense.

§ 4 Duties of cooperation of the customer

1. Unless otherwise agreed, the client must provide dxm with all information, data, texts, photos, films and/or other documents and materials required for the rendering of the service (hereinafter referred to as the “content”) in suitable formats promptly, within the deadlines and free of charge.

2. The content must be delivered to dxm within the deadlines and granting all rights of use required for the rendering of the service. The client is himself responsible for any incompleteness and/or defectiveness of the content provided and cannot in this respect invoke any defects vis-à-vis dxm. In all other respects, § 9 applies.

3. During the further period of the rendering of the service by dxm as well, the client is bound to a reasonable duty to cooperate vis-à-vis dxm, must respond to queries and to matters requiring coordination within a reasonable time and take decisions and must in particular fulfil his duty to cooperate in the interim and final acceptance in accordance with § 7 below.

4. At the latest upon countersigning the order confirmation, the client must name to dxm a responsible contact person for the respective service, stating that person's personal e-mail address. Future correspondence, in particular regarding the aforementioned duties to cooperate and the granting of the interim and final acceptances or notices of defects pursuant to § 7 of these general terms and conditions, may take place in a legally binding manner by e-mail contact by and with the responsible contact person.

§ 5 Prices

1. All prices stated by dxm are net prices and are exclusive of the statutory VAT payable on these prices, insofar as it is incurred. The prices are determined by the amount agreed in the respective quotation and the associated order confirmation or by the agreed hourly rate according to time spent.

2. Additional costs arising from the execution of the order, in particular costs for packaging, transport, dispatch, delivery, insurance, travel and accommodation costs and comparable costs, are not covered by the agreed price, but must be reimbursed by the client as expenses of dxm plus a service fee in accordance with the quotation.

3. Insofar as the client extends, restricts, provides with new deadlines or otherwise changes his order, this is deemed to be a new order, which for its part requires acceptance by dxm. For this new order, dxm may invoice the additional expenditure on individual services even without an express agreement.

4. If, during the rendering of the service, the need arises for more extensive processing in terms of time than originally assumed, dxm is entitled to invoice the demonstrable additional costs without an additional agreement up to an amount of 15 % of the agreed remuneration. If the agreed order volume is likely to be exceeded by more than 15 %, dxm is obliged to inform the client thereof and entitled to submit a new quotation to him. If the client does not accept the new quotation, he is entitled to withdraw from the contract against reasonable remuneration of the work performed by dxm to date.

§ 6 Terms of payment

1. Unless otherwise agreed in writing, the following payment periods apply:

  • 50 % of the agreed remuneration as an advance payment immediately upon placing of the order, due for payment within 14 days of receipt of the advance invoice following the return of the order confirmation by the customer; performance of the services will only commence after receipt of payment,
  • 50 % of the price after acceptance of the service, due for payment within 14 days of receipt of the final invoice.
  • In the case of a realisation period of more than 4 weeks, dxm is entitled to invoice partial invoices for the services rendered at the end of each month, due within 14 days of receipt of the respective partial invoice.

2. The due date is not prevented by the client giving notice that the service is defective, if it is undisputed that the order has been fully performed by dxm.

3. Upon expiry of the respective payment period pursuant to paragraph 1, default of payment occurs automatically and without further reminder. From the occurrence of default, amounts due bear interest at a rate of 9 percentage points above the respective base interest rate. dxm reserves the right to prove higher damages.

4. If the client is in default with a payment on an outstanding claim by more than four weeks, dxm is entitled to declare all claims from the business relationship which are not yet due to be immediately due.

5. A set-off against claims of dxm is only permissible with such counterclaims as are undisputed, acknowledged or established by a final and binding court decision. The exercise of a right of retention is only permissible with regard to such counterclaims as are based on the same contractual relationship and are undisputed, acknowledged or established by a final and binding court decision. dxm has a right of retention (Section 369 HGB (German Commercial Code)) and a contractual lien on materials, documents, etc. provided to dxm until all claims due from the business relationship have been satisfied.

§ 7 Completion deadlines / interim and final acceptance / duty to give notice of defects

1. Delivery and performance dates are without obligation, insofar as they have not expressly been made the subject matter of the quotation or the order confirmation and confirmed in writing.

2. dxm is not responsible for delays in delivery and performance due to force majeure and due to events which substantially impede or render impossible the execution of the order by dxm, which include in particular strike, lockout, official order, etc., even in the case of bindingly agreed periods and dates. They entitle dxm to postpone the execution of the order by the duration of the impediment plus a reasonable start-up time or to withdraw from the contract in whole or in part with regard to the part not yet fulfilled. In the case of an extension of the delivery time or release of dxm from the obligation, claims of the client for damages are excluded.

3. If the further execution of the order requires cooperation by the client (see § 4), he must render this without delay, but at the latest within the period set for him by dxm for this purpose, without further request. If the client does not fulfil this obligation or does not fulfil it within the deadline, the performance or delivery period contractually owed by dxm pursuant to paragraph 1 above is postponed in each case by the period of time for cooperation exceeded by the client plus a reasonable start-up time. In the case of the final refusal of his cooperation, dxm has the right to invoice all costs incurred to date and to refuse the further execution of the order. Cooperation is deemed to be finally refused if no response is received from the client after expiry of a further period set by dxm. dxm must draw the client's attention to this legal effect separately.

4. If necessary, interim acceptances by the client take place. In this process, the draft of the work is made available to the client by dxm for inspection in a suitable form in each case.

5. Analogously to the interim acceptance, the final acceptance of the end product takes place after completion of the work by dxm.

6. The client must inspect the service for acceptance within the period set by dxm and grant interim acceptance or final acceptance by means of consent to be declared in text form, or notify dxm of discernible defects in writing. If no acceptance is declared within the period or acceptance is not refused with reasons stating specific notices of defects, it is deemed to have been granted.

7. The interim or final acceptance may not be refused on purely creative-artistic grounds. Within the framework of the order there is freedom of design in this respect. However, the client is granted the possibility of a change in design which is reasonable for dxm by written notice within seven working days of receipt.

8. If the client has granted final acceptance of the service, he receives the service in the form(s) described in the quotation after his acceptance and full receipt of payment of the agreed remuneration.

9. Defects which are not obvious upon handover and which cannot be discovered even upon careful inspection within the period for giving notice for the final acceptance, but only come to light later, must be notified to dxm without delay after discovery; otherwise the service is likewise deemed to be free of defects despite the defect.

§ 8 Warranty / limitation period / rescission / termination

1. dxm undertakes to execute the order with the greatest possible care in a professional manner, in particular to treat the documents and information provided to it carefully and confidentially and to comply with the agreed deadlines.

2. Insofar as the service should be defective and the client is not excluded from his rights in respect of defects pursuant to § 7 no. 6 or 9 of this contract, dxm has a right to remedy the defect. If the remedy of the defect fails or is not possible for factual reasons, the client has the statutory claims to withdrawal, reduction of the price or damages, insofar as these are not limited by the following provisions.

3. Insofar as this is necessary, the client must cooperate in the rectification of defects. If the client seriously and finally refuses the necessary cooperation, the service of dxm is deemed to have been rendered faultlessly by way of subsequent performance.

4. All warranty claims in connection with the service commissioned from dxm become time-barred within 12 months from final acceptance, insofar as legally permissible.

5. dxm has the right to withdraw from an order or a business relationship as a whole if the creditworthiness or liquidity of the client deteriorates to such an extent that payment of current or future orders appears to be at risk. dxm has furnished proof thereof if the client is in default with the payment on an outstanding claim by more than two months. In this case, dxm retains a claim to partial remuneration for the services already performed, irrespective of whether these can be used in an economically sensible manner by the client. The client can avert the withdrawal by payment of all claims of dxm which are still outstanding.

6. If the client terminates before completion of the service, the (partial) services rendered by dxm up to the time of termination must be paid pro rata in accordance with the remuneration agreement. Further claims on the part of dxm remain unaffected.

7. The right of both parties to terminate for good cause without notice remains unaffected.

8. Termination requires the written form in each case.

§ 9 Copyright and rights of use in the working materials

1. Insofar as the client provides dxm with preliminary work, printing templates, texts, images, documents, materials or other documents (hereinafter jointly referred to as the “documents”) for the execution of the order, it is presumed that no protective rights or copyrights are infringed by their use and processing. By signing the order confirmation, the client warrants to dxm that the documents are his full property and/or that he holds the reproduction, trade mark, name, editing and other protective rights in these documents. dxm is not obliged to verify this information provided by the client or to carry out its own research into any conflicting protective rights. The client hereby irrevocably indemnifies dxm fully and unconditionally in the internal relationship against all claims of third parties who are infringed or affected by an encroachment, including any legal representation or legal prosecution costs that may arise.

2. With regard to content and advertising statements which the client provides to dxm or which have been created by dxm and subsequently approved by the client, in particular within the framework of an interim and/or final acceptance pursuant to § 7 above, the client bears sole responsibility for the legal admissibility and the correctness of the content of these statements. In this respect, dxm has neither a duty to examine nor a duty to give notice vis-à-vis the client. The client is expressly advised to commission a suitable specialist lawyer for industrial property protection with the legal examination of, for example, advertising texts and claims in order to avoid disputes with competitors from the outset. dxm examines the client's information neither in factual nor in legal respects. The client hereby irrevocably indemnifies dxm in the internal relationship against all claims of third parties who are infringed or affected by an encroachment, including any legal representation or legal prosecution costs that may arise.

§ 10 Copyrights / rights of use in the services

1. dxm is the sole author of all protected works created within the framework of the rendering of the service. In this respect, all copyrights and exploitation rights in the work lie exclusively with dxm. If the client has supplied preliminary work, ideas or other documents, this does not establish any joint copyright in his favour or in favour of a third party, insofar as this is legally permissible. Rights which are administered by collecting societies remain unaffected thereby. In respect of the texts contributed by the client for the website, the client himself remains the author of these literary works.

2. Upon full payment of the agreed remuneration, the client is granted a non-exclusive right of use in the work(s) produced by dxm, unlimited in territory and time, but non-transferable and required for the respective purpose, insofar as nothing deviating therefrom has been agreed in writing between the parties in the respective order. Any further use and reproduction, e.g. in other electronic or printed publications, in particular on other internet sites or domains, changes or other adaptations, in whole or in part, by the client or commissioned third parties is not permissible without prior written consent by dxm. Excepted therefrom are updates of the website created by dxm which are carried out by the client himself. Rights of use which are not expressly agreed in writing are deemed not to have been transferred.

3. dxm expressly does not warrant the protectability and/or registrability of its works, but does warrant that no rights of third parties conflict with the intended use by the client.

4. Insofar as desired by dxm or already carried out by dxm itself, dxm must be named as the author of the created work in a suitable form, for example as the website designer in the legal notice of the internet site, in the legal notice of a brochure or in the opening credits of a video, with its full company name and its logo. Any change, including the naming of further participants, requires the prior written consent of dxm in each case. In particular, in the case of an approved transfer OR reproduction of the work to third parties, the client undertakes to impose this aforementioned naming obligation accordingly in each case. If the work is subsequently substantially redesigned by the client or a third party, the attribution of authorship of dxm must be removed.

5. For each case of exceeding the obligations imposed on the client under nos. 2 and/or 3 above, dxm may demand a reasonable contractual penalty, the amount of which is determined by dxm at its reasonable discretion and can be reviewed by the competent court in the event of a dispute. The amount is limited to a maximum of 100 per cent of the agreed remuneration. The defence of continuation of the offence is excluded. If rights of third parties are additionally infringed by the client exceeding the rights, the client hereby irrevocably indemnifies dxm fully and unconditionally in the internal relationship against all claims of third parties who are infringed or affected by an encroachment, including any legal representation or legal prosecution costs that may arise.

6. Insofar as content which dxm develops does not become the subject matter of the production or the design, the client must return it to dxm without delay after acceptance and without being requested to do so, insofar as it is physically provided to him. He must delete files. This content must be kept secret by the client vis-à-vis third parties. The use of such content for other projects is possible for dxm.

§ 11 Liability

1. dxm is liable for the breach of contractual as well as non-contractual duties, in particular for default, culpa in contrahendo, impossibility and tort, only for intent and gross negligence, unless the simple negligence relates to the breach of essential contractual duties, namely those the fulfilment of which characterises the contract and on the fulfilment of which the client may therefore rely, or has damage arising from injury to life, body or health as its subject matter. dxm is not liable in the case of force majeure.

2. dxm expressly assumes no liability for any infringements of (protective) rights of third parties which are based on the works not being used by the client as intended and/or which were caused by a change which the client made himself or through a third party.

3. dxm is liable without limitation for defects of title, guarantee promises and claims under statutory product liability which cannot be excluded or limited.

4. The liability of dxm is in all cases limited to the damage foreseeable at the time of conclusion of the contract and typically to be expected. Any liability is excluded for any damage which is not foreseeable or which is atypical for the contract. In any case, liability is – insofar as legally permissible – limited to the agreed order remuneration.

5. Insofar as the liability of dxm is excluded or limited, this also applies to the personal liability of the executive bodies, employed staff, employees, representatives and vicarious agents of dxm.

§ 12 Confidentiality / data protection / retention periods

1. The client hereby undertakes vis-à-vis dxm to maintain absolute secrecy about the provisions of the respective order as well as all business, financial, technical or other information about dxm which has become known within the framework of the fulfilment of the contract and not to make it accessible to third parties, insofar as this information
a) is not generally accessible or
b) was not already demonstrably known to the client before the date of receipt.

This duty of confidentiality also applies to employees and other vicarious agents of the client and must also be observed after the expiry of the contractual relationship.

2. All personal data of the client which dxm receives from him within the framework of the execution of the order are collected, processed and stored by dxm in accordance with the statutory provisions of the European General Data Protection Regulation (“GDPR”) and of the Bundesdatenschutzgesetz (German Federal Data Protection Act) for the protection of the privacy and the informational self-determination of the client. They are only passed on to third parties insofar as this is necessary for the purpose of the performance of the contract. Under the General Data Protection Regulation, the client has the right at any time to free information about the data stored about his person as well as, where applicable, to completion, in addition a right to rectification, blocking or erasure, to restriction of the processing of these data as well as to data portability pursuant to Art. 15 et seq. GDPR. Furthermore, the client has the right to lodge a complaint with a supervisory authority pursuant to Art. 77 GDPR and to withdraw his consent once given vis-à-vis dxm at any time pursuant to Art. 7 (3) GDPR. Insofar as the personal data of the client are processed on the basis of legitimate interests pursuant to Art. 6 (1) sentence 1 lit. f GDPR, he has the right to object to the processing of his personal data pursuant to Art. 21 GDPR, insofar as there are grounds for this which arise from his particular situation.

3. If the client would like to make use of his right to object and/or one or more of the aforementioned data subject rights or would like further information on the subject of data protection, he can contact the data protection officer of dxm at any time at: datenschutz@dxm.space.

4. Unless otherwise agreed between the parties, dxm is free to hand over to the client, to retain or to destroy or delete all templates, drafts and other working materials created by itself or by the client. There is no obligation to hand over or to destroy/delete. In all other respects, the data protection erasure periods apply to personal data.

§ 13 Place of jurisdiction / applicable law / place of performance

1. The place of jurisdiction for all disputes in connection with the contractual relationship is – insofar as legally permissible – the registered office of dxm in Düsseldorf.

2. German law applies to the contractual relationship itself as well as to all disputes in connection with it, to the exclusion of the conflict-of-law rules of private international law and of the UN Convention on Contracts for the International Sale of Goods.

3. The place of performance is the registered office of dxm in Düsseldorf

§ 14 Place of jurisdiction / applicable law / place of performance

1. Ancillary agreements, amendments and supplements require the written form in order to be effective. Verbal ancillary agreements have not been made and are invalid.

2. Should individual provisions of these general terms and conditions be or become invalid or incomplete, the legal validity of the remaining general terms and conditions remains unaffected thereby. In place of the invalid or incomplete provision of these general terms and conditions, a valid provision is deemed to be agreed which comes closest to that originally economically intended by the parties.