These contractual terms and conditions shall form the supplementary contractual terms for the contractual relationship for the provision of services by the provider, Webmag GmbH (hereinafter: Webmag), and the Webmag customer (hereinafter: Customer).
These contractual terms and conditions apply exclusively to commercial enterprises within the meaning of §14 BGB (German Civil Code).
The provision of services by Webmag requires the conclusion of a licence agreement or an existing licence agreement to us the Webmag platform. The use of products and services of Webmag GmbH shall be in accordance with the Webmag General Terms and Conditions (GTC), which are in addition to these supplementary contractual terms and conditions and which the Customer also accepts by confirming these contractual terms and conditions. In particular, they govern the general rights and obligations. They are available at: https://webmag.io/agb.
The GTC and the supplementary terms and conditions for the provision of services by Webmag, which the Customer accepts upon conclusion of the contract, shall apply exclusively. Any terms and conditions of the Customer that conflict with or deviate from these contractual terms and conditions shall not apply unless Webmag has expressly agreed to their validity in writing, even if Webmag accepts an order from the Customer in which the Customer refers to his terms and conditions and/or refers to the GTC, and Webmag does not object to them.
Subject matter of the contract and special provisions
The subject matter of the contract shall be all the services agreed between the Customer and Webmag. This may be, on the one hand, the one-off or long-term provision of certain services by Webmag, e.g. the modification of media, optimisation of content or the creation of digital media and, on the other, the obligation to provide a successful service result, e.g. the customisation of the software provided.
If the parties agree on the obligation to provide a successful service result, clause 6 of these terms shall also apply in particular in addition to the general contractual terms and conditions.
Digital media shall be created and published on the basis of Webmag technology using the software provided at all times, regardless of whether created by the Customer or by Webmag.
The precise scope of services shall be set out in the description of service between the parties.
The basis for this shall, at all times, be a corresponding offer submitted to the Customer by Webmag for acceptance. The contents of the offer are decisive for the contract. If the Customer does not provide information that is necessary for the fulfilment of the contract, he shall bear the risk for the performance of such contract.
The subject matter of the service contract is expressly exclusively the components of an offer that relate to the provision of services. These items are marked as such. Items relating to the offer of product licences are expressly governed exclusively by the GTC. Webmag shall clearly refer to the applicable terms and conditions in the offer at all times.
Webmag shall provide the service in accordance with the agreements made in the offer and the conditions agreed below for the remuneration specified. Webmag shall provide the service in accordance with the principles of correct professional practice.
In deviation from the general contractual terms and conditions, the contract shall be concluded upon acceptance of a service offer submitted by Webmag to the Customer or by sending the order confirmation.
Performance of the services
The agreed services may consist of a one-off service, also to be provided in separate components, or may be long-term.
Webmag shall use the most qualified employees to provide the service. The Customer shall have no entitlement to the provision of services by specific Webmag employees.
Webmag reserves the right to provide the agreed services or individual components thereof at any time and to any extent via third parties (e.g. external development of templates or modules or the creation of specific content, e.g. the creation of images, graphics or text). Webmag shall be solely responsible for the service result provided, unless third-party providers are expressly indicated in the offer and therefore form part of the contractual agreement.
Webmag shall determine the manner in which the service is provided, unless agreed otherwise. Cost estimates and service deadlines are only binding if this has been expressly agreed in the respective description of service. The respective descriptions of service and cost are based on estimates and are prepared in accordance with the information provided by the Customer.
The Customer is not authorised to issue instructions to Webmag employees engaged in the provision of services.
Insofar as Webmag has summarised the results of the service results in writing, only the written representation shall be authoritative.
Obligations to cooperate on the part of the Customer
The Customer shall appoint a contact person for Webmag who will provide binding information and cooperation.
The Customer shall ensure that the contact person provides Webmag with the documents, information and data required to provide the service in full, correctly, in a timely manner and free of charge, insofar Webmag is not required to provide such information. The Customer shall also ensure they are updated. Webmag is under no obligation to check the completeness and accuracy of the documents provided.
The Customer shall provide full information to Webmag and in a timely manner of any factors that could influence the performance of the contract.
Period of performance and delay
Deadlines for the provision of services are non-binding. Any dates or deadlines that apply in a binding manner must be expressly agreed as binding between the parties. The corresponding agreement must be in writing.
Webmag shall not be responsible for delays in service due to force majeure or circumstances within the Customer's sphere of responsibility (e.g. delayed performance of cooperative actions). In the case of a successful service result under the contract, the period of performance shall be extended accordingly.
Webmag shall be liable for delays in service in cases of intent or gross negligence on the part of Webmag or a representative or vicarious agent in accordance with the statutory provisions. In all other cases of culpable delay in service, Webmag's liability for damages in addition to performance shall be limited to 5% of the value of the portion of the service relating to the delay and for damages in lieu of performance to 5% of the contract value. Further claims of the Customer are excluded. However, the limitation of liability does not apply in the event of liability for injury to life, limb or health.
Acceptance
Insofar as a successful service result is due in legal terms, Webmag may make partial services available to the Customer in advance in an appropriate form and demand a written declaration that the services or partial services are accepted in its entirety subject to functional capability.
The service results provided shall be deemed to be accepted by the Customer if the Customer provides his written approval or does not request any subsequent improvements (e.g. correction loop), raises objections due to deviations from the agreement concluded or requests more time for review owing to the scope of the result within four (4) weeks of receipt and in writing. In the event of an appropriate response, the period shall be extended in accordance with the time required to correct and resubmit the results, but no later than until the date of approval by the Customer. Where applicable, charges will be due in accordance with the terms agreed in the offer (e.g. after use of the correction loop incorporated).
Acceptance may only be refused by the Customer in the event of material defects.
Warranty and supplementary performance
The Customer shall immediately review all the services provided by Webmag to ensure that such services are free from defects.
Defects must be notified to Webmag in writing with a precise description of such. Webmag shall remedy the defects promptly insofar as Webmag is liable for such and they are essentially minor. Webmag shall be granted a reasonable period of time for this purpose.
In the event of defects, Webmag shall provide supplementary performance at its discretion either by remedying the defect or by creating a new product. Webmag shall be entitled to circumvent the defect by means of a workaround solution if the source of the defect itself can only be eliminated with disproportionate effort and the availability of the services is not substantially compromised.
No claims for defects may be asserted in the event of a merely minor reduction in availability in accordance with the contract.
If supplementary performance ultimately fails or is unreasonable for Webmag, the statutory provisions shall apply in all other respects unless otherwise agreed in the individual case.
Insofar as the services have been modified by the Customer without prior agreement or a modification has been initiated by a third party, no warranty claims against Webmag shall arise unless the Customer can prove that such modification does not make it significantly more difficult to rectify the defect and that the defect was already present at the time of acceptance, irrespective of the modifications applied.
Warranty claims shall become statute-barred 12 months after acceptance. This shall not apply in the case of intent, gross negligence, injury to life, limb and health, fraudulent intent, the assumption of a guarantee for the quality of an item or any liability under the Product Liability Act.
Temporary access restrictions and disruptions shall not constitute grounds for warranty claims or a right to extraordinary termination. The Customer may only terminate the contract if Webmag has had a reasonable attempt to rectify the defect and such attempt has failed. The rectification of defects shall only be deemed to have failed if it is impossible, is definitively refused by Webmag or is delayed on unreasonable grounds.
Clause 11 of the GTC shall apply in particular with respect to liability and the amount of damages.
Rights of use
Unless otherwise agreed, the Customer shall be granted the non-exclusive and non-transferable right to use the service results provided by Webmag and made available to the Customer within the scope of the contract for the Customer's own purposes on a long-term basis within the scope of the contractually stipulated purpose of use.
The period of use for the use of the performance results is limited to the term of the main contract. Upon the termination of the licence agreement, the Customer's entitlement to continue to use the service results shall also expire, unless this is expressly stipulated in the contract. The Webmag General Terms and Conditions (GTC) shall apply to the conclusion and termination of the licence agreement (https://webmag.io/agb).
In all other respects, Webmag shall remain the holder of all the rights.
Webmag may withdraw rights of use granted to the Customer if the Customer violates the restrictions on use or other regulations for protection against unauthorised use in a way that is not insignificant. Webmag shall set the Customer a period of notice to remedy such unauthorised use beforehand. Webmag may also withdraw the rights without providing a deadline in the event of a repeated breach and owing to specific circumstances which justify an immediate termination after due consideration of the interests of both parties. The Customer shall confirm the cessation of use to Webmag in writing following a withdrawal of the rights of use. Webmag shall grant the Customer the rights of use again once the Customer has stated and assured in writing that no further infringements of Webmag's rights exist arising from use by the Customer, and that any previous infringements and the consequences of such have been eliminated.
If there is a link to the Webmag platform, Webmag may also temporarily or permanently withdraw the availability and rights of use of the service results if the Customer fails to comply with the material provisions of the General Terms and Conditions (GTC) and, in particular, the use and payment terms contained therein.
Remuneration
The Customer shall pay the fees stipulated after performance of the agreed service or, in the case of a (partial) service, upon acceptance of the performance of the partial service, such partial service may be invoiced in advance if the parties have so agreed. An invoice shall therefore be issued to Webmag with a payment term of 14 days after receipt of the invoice, unless otherwise agreed.
If the services stipulated cannot be provided within six months of conclusion of the contract for reasons for which Webmag is not responsible, Webmag reserves the right to issue a partial invoice for service results already provided in accordance with the expenses for the respective services listed in the offer.
Unless otherwise agreed, Webmag may increase the remuneration that has been agreed for the long term, no earlier than 12 months after conclusion of the contract. Further increases may only be applied no earlier than 12 months after a previous increase takes effect. An increase will take effect two (2) months after the notice of such. In the event of a price increase, the Customer reserves the right to terminate the contract up to 14 days after such increase takes effect. If the Customer fails to issue a notice of termination within this period, the price increase shall be deemed accepted.
The agreed statements of expenditure shall be deemed to have been approved unless the Customer objects in detail in writing within four (4) weeks of receipt, and Webmag has indicated the assumption of approval in the statement of expenditure.
Travel costs and expenses and other expenditure shall be reimbursed in accordance with the Webmag price list, unless otherwise agreed. Travel time is considered working time.
Webmag shall be entitled to demand remuneration for the expenses incurred if additional expenditure is incurred due to the Customer's failure to fulfil its obligations in a correct manner (see clause 4).
Termination of the contract
The service contract shall end, if a service result is owed, upon fulfilment of the service result owed, or upon provision of the one-off service and receipt of the remuneration by Webmag, irrespective of the term of the basic contract.
If the parties have agreed on the provision of a long-term service, the service contract shall be concluded for an indefinite period and may be terminated by either party with two (2) months' notice. An agreed minimum term remains unaffected by this right of termination. This shall not apply in each case insofar as any terms to the contrary have been agreed in writing.
After termination of the contract, both parties shall return the documents in the respective possession of the other party along with any data carriers that were provided in connection with the performance of the service. Webmag shall delete data it has stored regarding the Customer insofar as no rights or obligations of retention exist.Any additional, ongoing contracts between Webmag and the Customer, in particular licence agreements of an unlimited term, shall remain expressly unaffected by the end of the service agreement.
The right to extraordinary termination for good cause remains unaffected.
In addition, the conditions for termination arising from the General Terms and Conditions apply.
Withdrawal from the contract is excluded after the conclusion of the contract.
Final provisions and validity of the General Terms and Conditions (GTC)
As far as legally permissible, the law of the Federal Republic of Germany shall apply, whereby the validity of the UN Convention on Contracts for the International Sale of Goods is excluded.
If the Customer is a commercial enterprise, a legal entity under public law or a special fund under public law, Webmag's registered office (Munich) shall be the exclusive place of jurisdiction for all disputes arising from the contractual relationship.
Should any individual provisions of this service contract terms be or become invalid, the other provisions shall remain unaffected.
In the event of any discrepancies arising from the translation, the German version of these GTC shall prevail.
