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The most important thing in advance
We design and build websites based on WordPress content management software.
We have designed the offer for you so that you always have control and all rights over your website. You have the intellectual property of your website in any case, even beyond the business relationship with ATMO. All other rights and obligations under the work contract are also based on partnership and fairness.
General terms and conditions
ATMO UG (limited liability)
in the following: ATMO -
These General Terms and Conditions (GTC) shall apply to all contracts concluded between ATMO and the customer.
Whenever websites are mentioned in these GTC, online stores are always meant as well.
ATMO offers the customer, among other things, services in the area of website and software creation or development (including technical maintenance). The specific scope of services shall be the subject of individual agreements between ATMO and the customer.
ATMO shall be entitled to subcontract the necessary services in its own name and on its own account to subcontractors who may in turn also use subcontractors. ATMO shall remain the customer's sole contractual partner in this respect. Subcontractors shall not be used if it is evident to ATMO that their use runs counter to the customer's legitimate interests.
The contracting parties undertake to name a contact person in each case who will accompany the respective order and who is authorized to issue legally binding declarations of intent.
ATMO shall not recognise any general terms and conditions used by the customer that deviate from these terms and conditions - subject to express consent.
2 Obligations of the customer to cooperate
If the customer provides ATMO with texts, images or other content, it shall ensure that this content does not infringe the rights of third parties (e.g. copyrights) or other legal norms. In this context, it is pointed out that ATMO is not entitled by law to provide legal advice to the customer. In particular, ATMO shall not be obliged and shall not be in a legal position to examine the customer's business model and/or the works created or acquired by the customer itself (layouts, graphics, texts, etc.) for their compatibility with the applicable law. In particular, ATMO shall not conduct any trademark searches or other property right collision checks with regard to the works provided by the customer. Insofar as the customer issues specific instructions with regard to the work to be produced, it shall be liable for this itself.
The customer is obliged to provide complete and correct information, data, works (e.g. the data for the imprint, data protection regulations, graphics, etc.) and accesses provided by him for the purpose of fulfilling the order. He shall also ensure that the instructions he provides are in compliance with the applicable law.
Subject to individual agreements to the contrary, the customer shall be responsible for procuring the material for the design of the websites (e.g. graphics, videos) itself and shall make this available to ATMO in good time. If the customer does not provide these and does not make any further specifications, ATMO may, at its own discretion, use image material of common providers (e.g. stock photo service providers) or provide the relevant parts of the website with a placeholder in compliance with the copyright labelling requirements.
Insofar as the conclusion of a contract processing agreement pursuant to Art. 28 DSGVO is required for individual contract components, both contracting parties undertake to conclude such an agreement prior to the commencement of the provision of services.
ATMO shall not be liable to the customer in any respect for delays and delays in the implementation of projects caused by late (necessary) cooperation or additional work on the part of the customer.
If the customer fails to comply with its obligations under this clause, ATMO may charge the customer for the additional expenditure incurred as a result (e.g. costs for stock photos and time spent searching for them).
- website creation with the help of agile methods.
Unless otherwise agreed individually, website creation shall be based on agile methods. Search engine optimization (SEO) shall only be owed if it has been expressly agreed.
The subject matter of website creation contracts between ATMO and the customer shall in principle be the development of new websites or the expansion of existing websites (e.g. integration of new interfaces or programming of new online applications) in compliance with the customer's technical and/or design specifications. Website creation contracts concluded between the parties are contracts for work and services within the meaning of §§ 631 et seq. BGB.
Unless otherwise agreed, the created websites are optimized for the four most common browsers in their current version. Unless otherwise expressly agreed, optimization for mobile devices is tested exclusively on the browsers Safari and Google Chrome for iOS and Google Chrome via Android emulator for Android.
The services agreed in detail shall result from the contract concluded individually between ATMO and the customer. For this purpose, the customer shall first submit a request to ATMO with as precise a description as possible of the website it wishes to have in terms of content, structure, design and functions. This request constitutes an invitation to submit an offer by ATMO. ATMO shall examine the customer's ideas described in the inquiry to the best of its knowledge and belief as to completeness, suitability, unambiguity, feasibility and consistency and shall prepare an offer on the basis of the wishes arising from the customer's inquiry. A contract between ATMO and the customer shall only be concluded upon the customer's acceptance of the offer. It is pointed out in this connection that partial or modified acceptance of the offer is not possible. This constitutes a new offer by the customer to ATMO and must be expressly accepted by ATMO in order to constitute a contract.
The examination or procurement of rights, the procurement of tools (e.g. statistics) or certificates (e.g. SSL/TLS) or the provision of development, application or other documentation shall only be provided by ATMO if this is expressly agreed in an individual contract.
ATMO shall provide the customer with insight into the development website. ATMO shall decide on the time and scope of the right of inspection at its own discretion. The customer may make requests insofar as these are covered by the originally agreed scope of services. Such adjustments shall become part of the original contract if both contracting parties agree in text form (i.e. e.g. by e-mail, fax or similar). Otherwise, ATMO shall only be obliged to produce the functions/items listed in the contract or to provide the agreed service (e.g. technical maintenance). Any services going beyond this must be agreed and remunerated separately.
After the order has been placed by the customer, the latter shall generally receive a "design proposal" from ATMO, the format and content of which shall be selected by ATMO at its own discretion; there shall be no entitlement to specific design elements or functions. If agreement cannot be reached on the basis of the "design proposal", ATMO may submit up to two correction loops. If no agreement is reached even after the third "design proposal", both parties shall have the right to terminate the contract extraordinarily; in this case, services already rendered shall be returned or appropriately remunerated. In this case, the customer shall have no claim to the return of the "design proposal" or the associated source codes, copies or the like. Copies remaining with the customer shall be deleted or handed over to ATMO.
As soon as the website has been completed, ATMO shall request the customer to accept the website.
A prerequisite for ATMO's activities is that the customer provides ATMO with all data required for the implementation of the project (texts, templates, graphics, etc.) in a complete and suitable form before the start of the order. If the customer fails to comply with this obligation, ATMO may charge the customer for the time spent as a result.
After completion and acceptance of the website and/or individual parts thereof, the customer shall receive from ATMO - if available and agreed in the individual contract - immediately by e-mail all graphics, source codes, any documentation and/or manuals of (third-party) modules used and any development documentation.
The remuneration for the website creation is the subject of an individual contractual agreement between the parties. In all other respects, the statutory provisions shall apply.
If no additional maintenance services are agreed between the parties, the customer alone shall be responsible for the technical maintenance and up-to-dateness of the website after acceptance. ATMO shall not be liable vis-à-vis the customer for any security gaps exploited by third parties for illegal purposes through the use of outdated software (hacking).
If the customer does not use hosting services from ATMO for the new website but from third-party providers, ATMO shall not assume any responsibility for the respective servers and their configuration, the data lines and/or the retrievability of the website.
- special provisions for the technical maintenance of websites
After completion of the website and/or individual parts thereof, ATMO may offer the customer maintenance services relating to the website. ATMO may also offer the maintenance of third-party websites. However, ATMO shall neither be obliged to make such an offer nor shall the customer be obliged to make use of ATMO's further service offers. Corresponding agreements are exclusively the subject of individual agreements.
The content of the maintenance agreements is exclusively the regular (every seven (7) days) execution of updates of WordPress, plugins and themes.
The prerequisite for the maintenance is that the contents to be maintained are compatible with the systems of ATMO and also with each other. Compatibility may be impaired in particular by outdated components of the content to be maintained or by unauthorized changes on the part of the customer, in particular by the unauthorized installation of further plug-ins and other technical extensions. Incompatibility may also arise as a result of regular updates if the newer versions of individual elements are no longer compatible with each other in contrast to their earlier versions; ATMO has no influence on this. If compatibility is not guaranteed, the customer must establish it independently (e.g. by means of appropriate updates) or commission ATMO separately to establish compatibility, which shall be remunerated separately in this case.
ATMO shall not be liable for malfunctions and incompatibilities caused by unauthorized changes made by the customer or based on other errors that are not within ATMO's sphere of responsibility; the provisions under "Liability and indemnification" shall remain unaffected.
If future updates of the website by ATMO are no longer possible due to incompatibilities, both parties may terminate the maintenance agreement extraordinarily at the end of the current quarter.
Unless otherwise agreed, the maintenance shall only include the technical updating of the website, but not the updating of its content. In particular, ATMO shall not be responsible for updating the imprint or the data protection statement.
- web hosting
ATMO also offers hosting services to the customer - in particular as an additional option in the context of website creation. The specific scope of services (storage space, certificates, etc.) shall be the subject of individual agreements between the parties. ATMO shall be entitled to make use of third-party services in any form in connection with the performance of hosting services.
Unless otherwise agreed, ATMO shall assume the administration and management of the data in the event of an assignment as hoster. The customer shall in principle not be granted access to the administration backend of the hosting system.
The availability of the servers used by ATMO for the purpose of hosting shall be at least 99% on an annual average. Excluded from this are those times during which the servers are not accessible due to events beyond ATMO's control (force majeure, acts of third parties, technical problems, etc.).
Unless otherwise agreed, the customer shall have no claim to the allocation of a fixed IP address for its Internet presence. Technical or legal changes are possible at any time and remain reserved.
The customer shall be obliged not to disclose its passwords and other access data - insofar as such have been made available to it by ATMO - to third parties and to change them regularly. The customer itself shall be responsible for any misuse by third parties, insofar as it is responsible for such misuse.
The customer shall be obliged to make regular back-up copies of its hosted data.
If the customer is not in a position to do so, it shall commission ATMO or other professionally suitable third parties with the backup. The customer itself shall be liable for any loss of data resulting from inadequate data backup.
- special conditions for photographers and the producers of video and film productions
In the absence of a written agreement to the contrary, the Contractor shall procure models and props at his own expense and risk.
If photography/filming cannot be carried out because a model booked by the Contractor in good time fails to appear at the shooting date, any additional costs incurred for model fees, props and ancillary costs shall be borne by the Contractor.
The agreed fee shall cover all services rendered by the Contractor, including - in the absence of any written agreement to the contrary - model, prop, material, laboratory, travel and similar costs. Insofar as the Client is required to reimburse the Contractor for third-party costs as agreed, the amount of such costs must be approved by the Client before they are incurred on the basis of a complete preliminary calculation by the Contractor.
The contractor waives the signature of the photographs and his possible right to be named, but may be named by the client.
The Client acquires ownership of photographic recording material (negatives, slides, films, intermediate negatives, prints, digital raw data, files in open formats, e.g. PSD, etc.) upon payment of the fee. The recording material shall be handed over to the Client together with the invoice, if this has not been done beforehand, or, at the Client's request, shall be kept in safe custody for the Client free of charge from the time the invoice is issued.
The Contractor shall always have third parties involved in the production and others who are entitled to rights to the result of the production sign a declaration on the transfer of rights of use in accordance with IV. 2 and submit it to the Client without being requested to do so.
The transfer of footage shall be in the format specified by the client.
- SEO marketing
ATMO offers the customer, among other things, services in the field of SEO marketing. Within the scope of the provision of services, ATMO shall exclusively owe the implementation of measures which, according to ATMO's own experience, can positively influence the search engine ranking or which are expressly ordered by the customer. This is a service within the meaning of §§ 611 et seq. BGB. A specific result (e.g. sales figures), on the other hand, is only owed within the scope of SEO services if this has been expressly assured. Marketing services may be cancelled by either party to the contract with a notice period of one (1) month.
- prices and remuneration
Fees for ongoing services shall be charged on an hourly basis per half hour or part thereof and invoiced at the end of the month in which they are incurred.
In the case of a contract for work and services (e.g. website creation), ATMO shall be entitled to demand payments on account within the meaning of § 632a BGB. Deviating individual agreements shall remain unaffected. In the case of contracts for work and services, the total amount shall be due at the latest three (3) months after the order has been placed.
A cash discount shall not be granted. In all other respects, the statutory provisions shall apply.
If the customer is in default of payment, ATMO may charge default interest in the amount of nine (9) percentage points above the prime rate.
ATMO shall be entitled to adjust its own prices regularly to the extent that ATMO's own costs for the provision of the service increase. Existing customers will be notified of the price adjustment by e-mail at least one month before the change takes effect. Unless the customer objects within the period set in the notice of change, its consent to the change shall be deemed to have been given. The notification of the intended price adjustment will refer to the deadline and the consequences of the objection or its absence. If the customer does not agree with the price adjustment, he may terminate the subscription extraordinarily at the time the price adjustment comes into effect.
Insofar as a work performance using agile methods has been agreed, ATMO may require acceptance to be in writing; written acceptance shall only be owed if ATMO requests the customer to do so. The acceptance provisions of the German Civil Code shall remain unaffected in all other respects. The acceptance period within the meaning of Section 640 (2) sentence 1 of the German Civil Code (BGB) is set at 2 weeks from notification of the completion of the work, unless a longer acceptance period is required in individual cases due to special circumstances, which ATMO will notify the customer of separately in this case.
If the customer does not comment within this period or does not refuse acceptance due to a defect, the work shall be deemed accepted.
10 Warranty for defects
An insignificant defect shall not give rise to any claims for defects. The choice of the type of subsequent performance shall lie with ATMO. The limitation period for defects and other claims shall be one (1) year; this reduction of the limitation period shall not apply to claims resulting from intent, gross negligence or injury to life, limb or health by ATMO. The limitation period shall not recommence if a replacement delivery is made within the scope of liability for defects. Otherwise, the statutory warranty for defects shall remain unaffected.
- term of contract in the case of continuing obligations
Subject to deviating provisions in and outside these GTC, continuing obligations (e.g. care contracts) have a minimum term of 12 months. The period of notice is 1 month. If the contract is not terminated in due time at the end of the term, it shall be automatically extended by a further 12 months. The right to extraordinary termination for good cause remains unaffected.
- granting of rights, self-advertising and right of mention
ATMO shall grant the customer - after full payment of the order by the customer - a simple right of use to the corresponding work results and/or the respective source codes at the time of their creation. Further rights may be agreed between the parties by means of an individual contractual agreement.
Unless otherwise agreed, the customer shall expressly grant ATMO permission to present the project publicly in an appropriate manner for the purpose of self-promotion (references/portfolio). In particular, ATMO shall be entitled to advertise its business relationship with the customer and to refer to itself as the author on all advertising material produced and in all advertising measures without the customer being entitled to any remuneration for this.
Furthermore, ATMO shall be entitled to place its own name with a link in an appropriate manner in the footer or in the imprint of the website created by ATMO without the customer being entitled to any remuneration for this.
ATMO shall treat as strictly confidential all business transactions coming to ATMO's knowledge, in particular, but not exclusively, print documents, layouts, storyboards, numerical material, drawings, tapes, images, videos, DVDs, CD-ROMs, interactive products and such other documents containing films and/or radio plays and/or other copyrighted materials of the Customer or its affiliated companies. ATMO undertakes to impose the obligation of secrecy on all employees and/or third parties (e.g. suppliers, graphic designers, programmers, film producers, sound studios, etc.) who have access to the aforementioned business transactions. The obligation to maintain secrecy shall apply for an unlimited period of time beyond the duration of this contract.
14 Liability / indemnification
ATMO's liability for all damages shall be limited as follows: In the event of a slightly negligent breach of a material contractual obligation ("cardinal obligation"), ATMO's liability shall in each case be limited to the amount of the damage foreseeable at the time of the conclusion of the contract and typical for the contract. Cardinal obligations are obligations the fulfilment of which makes the proper performance of the contract possible in the first place and the observance of which a party may regularly rely on. This limitation of liability shall not apply in the event of gross negligence or intentional acts or in the event of mandatory statutory liability, in particular in the event of the assumption of a guarantee or culpable injury to life, limb or health. The above liability provision shall also apply with regard to ATMO's liability for vicarious agents and legal representatives.
The customer shall indemnify ATMO against any claims by third parties asserted against ATMO on the basis of breaches by the customer of these GTC or of applicable law.
15 Final provisions
The contracts concluded between ATMO and the customer shall be governed by the substantive law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
If the customer is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in Germany, the parties agree that ATMO's registered office shall be the place of jurisdiction for all disputes arising from this contractual relationship; exclusive places of jurisdiction shall remain unaffected.
© 2020 ATMO UG (haftungsbeschränkt). All rights reserved.
Status: May 2020