PSM&W new media GmbH Terms and Conditions of Service – as of May 1, 2011
The PSM&W agency (“the agency”) provides services (for clients) and buys services (from providers) exclusively on the basis of the terms and conditions established in this document. These Terms and Conditions are valid for all service orders made and all services provided in the future. Any agreements differing from these Terms and Conditions must be established in writing. The contracting party's Terms and Conditions will not constitute a part of this contract.
PSM&W ensures a close and trusting collaboration with its clients. The agency will act in the client's interest to the utmost of its ability. The client is obliged to make any required information, data, or documents available to the agency in a timely fashion.
3. Participation by third-parties
PSM&W is entitled to commission third-parties with the completion of delegated tasks, and to award commissions to these parties in the client's name. PSM&W will be considered as a collaborator on any sub-contracted work. The client hereby gives the agency the full legal authority required to sub-contract in this fashion. The client is responsible for third-parties and auxiliary personnel in PSM&W's own area of activity hired at client's request. Furthermore, PSM&W is not liable if obligations to the client remain unfulfilled, or cannot be completed on time because of the behavior of a third-party.
Remuneration will be paid to PSM&W according to the number of hours worked, unless a fixed price has been explicitly established by contract. The latest price-list will be used. Any agreements deviating from this price-list must be established in writing. PSM&W is entitled to change or increase the rates of compensation at its own reasonable discretion (§ 315 German Civil Code). If the parties have not made any agreement about remuneration for a service provided by PSM&W, whose execution the client may think is included in the total price under these circumstances, then the client will pay a normal fee for this service. In case of any doubt, the rates of remuneration stipulated by PSM&W for its services will apply, considered as the normal prices. PSM&W is entitled to demand partial or advance payments from a client if a project extends over a longer period of time, comprises a larger volume of work, or if payments to subcontractors are due before the project's completion. The client is responsible for all documented costs incurred (among others, travel, overnight accomodation, expenses, and requests for payment from third-parties for services provided within the framework established by the contract).
5. Offers and Commissions
Cost estimates from the company are categorically non-binding, except when delivery for a fixed price has been explicitly agreed upon. If it can be foreseen that the agency's actual costs will exceed the estimate by more than 20%, the agency will inform the client in a timely manner, stating the reasons for the higher costs.
5.1 Changes To the Contract By the Client
If the client wishes to change the contractually determined scope of the project, he or she will express this change request to PSM&W in writing. PSM&W will evaluate the client's change request to the best of their ability, and in so far as the change is possible, considering the interests of the agency. The evaluation will be charged to the client at the agency's normal hourly rate.
After evaluating the change request, PSM&W will explain to the client the effect of the changes on the established contract.
The parties will immediately come to agreement upon a proposal for the implementation of the change request, and attach the resulting agreement (which should explain the changes) to the text of the contract as an addendum. If agreement cannot be reached, then the scope of services originally offered will remain unchanged.
The delivery dates promised to the client will be postponed in consideration of the time required for to evaluate the request, to reach a new agreement, and, if necessary, the time spent carrying out the requested changes, plus a reasonable lead time period, if needed.
5.2 Conclusion of Contract
The contract governing the correct delivery of PSM&W's services is concluded when the client sends written confirmation ending the project. This confirmation can also be given verbally or by email.
Unless PSM&W provides services free of charge, prices and fees may be adjusted at any time, without prior notice. N reductions, refunds or claims for damages will result from these changes.
All our services will performed and deliveries will be made in Frankfurt (§ 269 German Civil Code).
Scheduled delivery dates will not be fixed by contract, but time-frames for the completion of each phase of the project will be established in advance: These begin the day on which the order was dispatched, and end on the day that the project is submitted for inspection and approval. If, after accepting the project, the client requires modifications to be made that will delay the final completion date, then a new phase begins, which ends with the approval of the modifications. PSM&W will not be held responsible for exceeding the pre-established time-frame if this is caused by circumstances beyond our control, for example, force majeure circumstances such as natural disasters.
In the case of failure to deliver, the client is only entitled to exercise his legal rights after a reasonable grace period; compensation for lost profits and consequential damages may not be sought.
7. Conditions of Payment
All invoices are due within 14 days of receipt without discount, and all services are subject to VAT. Failure to pay on time (default) will result in interest being charged according to German Civil Code § 288. PSM&W also reserves the right to withhold its services and the products thereof. The cancellation of outstanding debts is only to be permitted with prior written agreement from both parties to the contract. Permission shall not be withheld without good reason. This does not prejudice the provisions of German Commercial Code § 354a. The client's or service provider's right of retention can only be considered valid if based on counterclaims pertaining to the contractual relationship itself. The parties may only offset claims that have been established in a court of law, or are undisputed. In the case of payments to service-providers for orders in name of a PSM&W client, default will be considered to have occurred at the earliest one week after the agency receives payment from the client. There is no obligation to pay for extra deliveries on the part of the service-provider that are not part of the order.
8. Inspection and Approval, Guarantee
The client is obliged to carry out inspection and approval or partial approval immediately and to report the results in writing. If there is no complaint of serious shortcomings within 30 days, or another agreed upon approval period, or if the client puts the products of the contract to use in his productive operation, the project will be considered approved and completed.
Evidence of any deviation from specifications must be provided and explained in a comprehensible manner by the client.
In the case of a justified complaint, PSM&W is free to choose between alteration, reworking, or replacement within a reasonable period of time.
Defects in one part of the delivery cannot justify the rejection of the whole delivery. Such partial defects can only result in price reduction, and do not justify the client seeking contract cancellation or punitive damages.
As a basic principle, websites subsequently modified by the client or a third-party are not guaranteed by PSM&W in any way.
9. Reservation of Property Rights
Until full payment has been made on all the invoices pertaining to an order, PSM&W retains possession of all documents and articles transferred to it for the project. Legal rights to the products of the agency's services, in particular copyrights and usage rights, will not be transferred to the client until full payment has been received for all invoices pertaining to the order. Draft versions, data, and other working materials (especially source code), which PSM&W authors, or has authored by a third-party, remain property of the agency unless there is an explicit contractual agreement otherwise. The company has no obligation to release or preserve records of its projects. Until full payment has been received, the client has only provisional, entirely revocable permission to use the products of the company's services.
10. Licensing Fees
The acquisition of intellectual property rights to works prepared by PSM&W requires a special contractual agreement to be made in writing. This may only apply to services provided by the company according to the framework established in the contract. If the client benefits from services outside of the scope of the original contract, a separate licensing fee will be charged.
The company's liability is limited to gross negligence and compensation for typical and predictable damages. Maximum liability will be equal to the value of the entire contract. PSM&W is not liable for poor performance by any third-party whose services are used in carrying out the contract.
12. Infringement of Property Rights
The client releases PSM&W from third-party claims of infringement of property rights (patents, licenses, other proprietary rights).
13. Nondisclosure agreement
PSM&W, the client and the provider of services agree to that all business transactions will be conducted exclusively according to the requirements of the contract, to the best of their knowledge. Furthermore, they agree not to make any information pertaining to such transactions available to third-parties. This obligation continues beyond the end of the contractual collaboration. All persons involved in the execution of the contract will accordingly be held to the same nondisclosure agreement.
14. Non-solicitation and Customer Protection
During the period of collaboration, and for the space of one year afterwards, the client is forbidden to entice any of PSM&W's employees away or to hire them without PSM&W's permission. For every such violation of this agreement caused by the client, the client will pay compensation in an amount to be determined, and in case of dispute, established by the appropriate court of law. The service provider guarantees customer protection in the sense that he or she refrains from all active attempts to gain work from PSM&W's clients. This obligation continues for one year after the conclusion of the contract.
15. Other issues
PSM&W may use websites and other media produced for clients as part of its portfolio of references. PSM&W may also reuse materials it has produced in public demonstrations and may make reference to them as required, unless the client has a legitimate reason for refusing this. The service provider may only advertise using the work done for PSM&W or the client with the prior written consent of PSM&W. Such advertisements must display the words, “Made on assignment for PSM&W new media GmbH, Frankfurt am Main.”
16. Area of Jurisdiction
The parties irrevocably submit to the exclusive jurisdiction of the courts of the Federal Republic of Germany for the determination of all disputes arising under this contract. Private International Law and United Nations CISG will not apply. The forum and exclusive jurisdiction for all disputes arising under or in relation to this contract will be Frankfurt am Main.
17. Severability Clause
Should one or more of the provisions of this contract be or become invalid, the validity of the remaining provisions will not be affected. An invalid provision will be replaced with a valid one that comes as close as possible to the intention of the original provision, within the limits of what legal possibility.
Note on § 33 of the German Bundesdatenschutzgesetz: PSM&W may compile, process, and use clients' and service providers' personal data only if this is necessary for business that follows from the contractual relationship.