General Business Terms of textbest GmbH
§ 1 Scope
- The textbest GmbH (hereinafter referred to as textbest) runs a service for text services, which is provided via the Internet. The text services are performed by certified freelance professionals (copywriters, editors and proofreaders). In all cases, the contract is made with textbest and not with the respective specialist directly.
- Textbest provides its services on the basis of these Terms and Conditions exclusively; with the placing of orders the terms and conditions are regarded as accepted. Deviating conditions of the customer are hereby explicitly excluded, unless their validity was explicitly confirmed in writing. The terms and conditions apply only to companies in terms of § 310 Abs. 1 BGB. These Terms and Conditions also apply to all future business relations, even if they are not expressly agreed on again.
- Textbest has the right to change and supplement these Terms and Conditions. Changes or additions will be communicated to the client.
- Subsidiary agreements, warranties and other agreements as well as changes and supplements to the contract have to be made in written form in order to be legally effective.
§ 2 Realization of Contract
- Textbest generates an offer based on the information provided by the client. The offer is to be confirmed by the customer in writing or in text form.
- The contract is concluded with the receipt of the order confirmation.
- With the conclusion of the contract textbest begins the processing. From this point on, the contractual delivery period begins. Deviating delivery dates are only binding if they are separately confirmed by textbest in writing.
§ 3 Scope of Services and Right of Use
- Textbest commits to properly and professionally composing and revising or correcting the text ordered by the customer.
- The client receives – as far as it is legally permissible – the use and exploitation rights in accordance with the contract between him and textbest. Other use rights as well as the transmission or sale require prior written agreement between the client and textbest.
§ 4 Acceptance and Notification of Deficiencies
- After processing, the text is sent to the client via e-mail. At the same time, the customer will be pointed to the completion of the contract via e-mail or by phone (if agreed).
- The text service must be inspected for deficiencies immediately after it is deployed. Obvious deficiencies are to be notified immediately, hidden deficiencies are to be notified right after their discovery. This has to be done in written form, stating the deficiencies. If no objection is brought forward within one week after the notification of completion, the text service is considered to be contractually provided.
- Other shipping forms, eg. e-mail or fax, are only possible when explicitly agreed on.
- Textbest bears the risk of data loss until delivery of the existing text. As far as other forms of shipping (mail, fax) have been explicitly agreed on, the risk shall pass on to the client only upon delivery of the text to the carrier or with the print of the corresponding fax at the recipient’s.
§ 5 Rectification
- As far as the final text service differs from the requirements agreed on, textbest rectifies the order in accordance with the written complaint (comp. § 4) for free. A repair is excluded or subject to charges if the deviations are caused by the client himself, for example in the case of incorrect or incomplete information, or if a second rectification is requested after a first correction in accordance with the written complaint. In this case, the client receives a separate offer for this additional service.
- The rectification period begins with the date of receipt of the complaint in written form. A reasonable period of time is due to textbest, which must add up to at least half the time of the original appointment. If the deadline expires without removal of the deficiency, the customer may request the cancellation of the contract (rescission).
- Does the client set a reduced rectification time with respect to a § 5.2, textbest is entitled to bring the extra effort to account separately.
- The determination of the period referred to in § 5.2 shall not be required if the client has explicitly stated in the contract, that after the expiry of the delivery period the provision of contractual services is useless for him.
- All claims are excluded if the deviation reduces the value or the suitability of the text service only slightly.
§ 6 Payment and Conditions of Payment
- Unless it isn’t agreed onotherwisein the contract, textbest brings the agreed services to accountat theirrespective applicablepricesand conditions, plus the validVATinvoice. The clientcanafforddischarge of debt
- by using the payment methods provided by textbest to make a payment in euro.
- The applicable remuneration is due upon receipt of the invoice for payment within 10 days. After expiry of the 10 days, the client is automatically in default. If the payment is delayed, textbest is entitled to charge interest at the rate of eight percentage points above the base rate according to § 247 BGB per year. The text service and the associated rights (eg. author’s moral rights, exploitation rights and usage rights) are under retention of title (reservation of rights) until full payment of compensation.
§ 7 Settlement/Non-Assignment Clause
- The client can charge against the claims of textbest only with undisputed or legally enforceable claims. The customer is entitled to assert a right of retention only of those counter claims arising from the contractual relationship and such claims to which the retention is asserted.
- The assignment of rights under this contract is prohibited without the consent of textbest.
§ 8 Termination
- The client can terminate the contract until completion of the text service.
- If the client terminates a contract before completion and delivery to the client, the incurred costs must be partially refunded according to the degree of completion. The reimbursement claim is in any event at least 50% of the value of the consideration agreed on (contract value).
- The data or processed texts in the form of files obtained by the client under the contract remain with textbest for archive purposes. The deletion of these data is only executed on the basis of an explicit written request of the client.
§ 9 Liability and Limitation of Liability
- Claims for damages against textbest in contract, negligence of contract, positive breach of contract, impossibility, delay and tort are excluded by the permitted scope of law, unless there is intent or gross negligence.
- Textbest shall not be liable in cases of ordinary negligence of its organs, legal representatives, employees or other agents as long as it is not a breach of contractual obligations. The timely provision of a service free of essential deficiencies is the principal contractual obligation.
- As far as textbest is liable for damages in accordance with § 9. 2, the liability is limited to damages which Textbest foresaw as a possible consequence of a breach of contract when the contract was concluded, or should have foreseen by due diligence. Indirect and consequential damages which are the result of defects in the service, are also only eligible for compensation if such damages are to be expected under intended conditions of use of the text services.
- The liability for damages arising from the fact that the client has forwarded the text service without checking is excluded.
- If the customer requires the use of its own terminology, textbest shall be exempt from all liability.
- Textbest is not liable for failure or delay due to force majeure and unforeseen, temporary or other impediments to performance like strikes and lockouts as well as failure of communication networks and gateways of other operators.
- Liability for damage caused by the use of services of textbest, by incorrect storage or transmission of data by textbest or of textbest inflicted doom of texts and documents is limited to the amount of the proven damage. In any case, the liability is limited to the agreed on value of the contract.
- The above exclusions and limitations apply to favor of bodies, legal representatives, employees and other agents of textbest in the same extent.
§ 10 Caveat Emptor
Textbest does not warrant that the respective processing is legitimate and appropriate for the purpose of the client. This is especially true for the case that the text delivered is being published or used for promotional purposes. Also, textbest does not guarantee the technical accuracy of the supplied text. The client bears the sole legal risk of the use or publication.
§ 11 Secrecy, Viruses and Data Protection
- Textbest makes every effort to maintain the confidentiality of the transmitted texts according to the latest state of the art. However, textbest cannot ensure that a wholly-owned confidentiality because access by unauthorized persons in electronic data communication cannot be excluded.
- Textbest also endeavors to examine the electronic data communication according to the latest state of the art for any viruses or sabotage programs. However, one hundred percent protection against viruses or sabotage cannot be guaranteed, even by due diligence. The customer is expressly adverted to a remaining risk.
§ 12 Final Provisions
- Place of fulfilment for all contractual services is the seat of textbest GmbH in Berlin, Germany.
- Berlin (Germany), shall have exclusive jurisdiction for all disputes, claims or disputes arising from or in connection with this contract, including its validity, invalidity, breach or termination.
- Contracts concluded on the basis of these Terms and Conditions, are subject to German law exclusively. Rules of international uniform sales law (CISG) are waived, as far as they are permissible.
- If any clause of this agreement is or is becoming wholly or partially invalid or ineffective, this shall not affect the validity of the remaining provisions. Instead, the invalid clause shall be replaced with a provision which matches the agreement, and which would have been agreed on by the parties in order to achieve the same economic result if they had known the invalidity of the provision. The same applies to a regulatory gap.