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    Terms and Conditions

    General Terms and Conditions of Davies Meyer GmbH (as of January 2020)

    Scope of Application

    1. These General Terms and Conditions ("GTC") apply to all services (each a "Service") of Davies Meyer GmbH, Spielbudenplatz 24-25, 20359 Hamburg ("Davies Meyer"), unless different terms and conditions of Davies Meyer apply or unless otherwise expressly agreed between the parties in individual cases.
    2. Davies Meyer provides Services exclusively to contractual partners (each a "Client") who are entrepreneurs within the meaning of § 14 BGB (German Civil Code) or a legal entity under public law or a special fund under public law. Davies Meyer or the Client are hereinafter also referred to individually as a "Party" and collectively as the "Parties".
    3. Conflicting, deviating or supplementary general terms and conditions of the Client shall not apply unless Davies Meyer expressly agrees to their validity. This also applies if Davies Meyer does not expressly object to the application of the Client's general terms and conditions.
    4. Provisions deviating from these GTC, amendments or additions require written form.
    5. The Client acknowledges that Davies Meyer may need to cooperate with other agencies or service providers of the Client in order to provide the Services. Insofar as the Client has its own contractual relationship with these agencies or service providers, the contractual obligations of Davies Meyer agreed in these GTC shall not apply to this separate contractual relationship.

    Offer, Contract Conclusion

    1. Offers from Davies Meyer are binding for the period stated therein (acceptance period). If no acceptance period is specified in the offer, Davies Meyer is bound by the offer for ten (10) calendar days from receipt of the offer by the Client.
    2. A contract between the Parties is concluded when the Client accepts the offer in writing (email is sufficient).

    Agreed Scope of Services and Agreement on Service Changes

    1. The scope of Services to be provided by Davies Meyer is determined by contracts concluded in writing or by email. Oral declarations or commitments made prior to the conclusion of the contract are replaced by the contract concluded in writing or by email, unless expressly stated otherwise in this contract.
    2. Davies Meyer reserves the right to make deviations from the offer documents or order confirmation that are mandatory due to legal or technical standards.
    3. Without a separate order, Davies Meyer is not obliged to check the Client's task description or service description or other data or information provided by the Client for completeness or accuracy if there is no justified reason to do so.
    4. Davies Meyer only owes an extensive legal review or a review of the factual accuracy of the factual statements contained in the specified content if this has been expressly agreed. In the case of a corresponding separate agreement, Davies Meyer commissions a legal review by a lawyer, a content review by a qualified third party, or involves an authority responsible for the assessment. Davies Meyer invoices the Client for the fees and costs incurred for a review under this clause.

    Website Creation

    1. Unless otherwise agreed, Davies Meyer always creates websites as web versions and optimized for the browser types that are common on the market at the time of creation (currently Chrome and Edge) in their most widely used version at that time. Compatibility with other browsers or a mobile version is not owed unless this has been explicitly agreed between the Parties.

    Campaign Creation

    1. If the Client commissions Davies Meyer to create an advertising campaign, Davies Meyer uses publicly available market research data as well as its own knowledge and experience from the advertising industry.
    2. Davies Meyer only owes the creation of the advertising campaign to the best of its knowledge and belief, but not a specific advertising success.
    3. The creation and/or implementation of an advertising campaign is billed monthly on a flat-rate basis or, in the absence of an agreement, on a time and materials basis, unless otherwise agreed between the Parties.

    Media Planning and Media Implementation

    1. Clauses 5.1 and 5.2 apply accordingly to media planning and media implementation.
    2. High third-party costs may arise in the implementation of media planning or media implementation services (for example, but not limited to, for placing advertising on social networks or social media). If these third-party costs exceed EUR 5,000.00 net in an individual case, Davies Meyer may make the placement of this advertising dependent on advance payment by the Client, the amount of which is determined by Davies Meyer in view of the third-party costs.
    3. If a date desired by the Client for the placement of specific advertising cannot be met because the Client has not made the advance payment in accordance with Clause 6.2 or has not made it in time, Davies Meyer is not liable for any consequences or resulting damages to the Client.
    4. If a social network or social medium does not place advertisements on the agreed date, even though Davies Meyer has done everything necessary for placement, Davies Meyer is not liable for any consequences or resulting damages to the Client.

    Advertising Material Production

    1. If the Services include the production of advertising materials, Davies Meyer places the respective production orders with a suitable advertising material manufacturer in its own name after approval by the Client. Smaller production orders with a value of less than EUR 2,000.00 net do not require prior approval by the Client.
    2. Davies Meyer receives the invoices from the advertising material manufacturer, checks them and pays them. Davies Meyer invoices the Client separately for the costs according to these invoices from the advertising material manufacturer or together with other services.
    3. Unless otherwise agreed between the Parties, Davies Meyer receives a fee of 15% of the net value of these invoices from advertising material manufacturers. Davies Meyer invoices this fee to the Client together with the costs for the advertising material manufacturer's service.
    4. If the costs for advertising material production to be commissioned exceed EUR 5,000.00 net per case, Davies Meyer is entitled to make the commissioning of the advertising material production dependent on advance payment of the gross order value by the Client.

    Development Services, Software

    1. For any form of development services within the scope of the Services, Davies Meyer is not obliged to hand over the source code unless and only to the extent required by applicable open source conditions.
    2. If Davies Meyer makes recommendations for the use of hardware components or peripheral devices, the adaptation of peripheral devices provided by the Client or used at the Client's request that are not covered by this recommendation is not included in the scope of services. The adaptation can be very time-consuming and costly in individual cases.

    Client's Obligations to Cooperate

    1. The Client provides Davies Meyer with all data, information and documents required for the execution of the order.
    2. The Client adheres to agreed schedules and provides requested feedback on details in the provision of Services without delay.
    3. From time to time, Davies Meyer submits drafts of Services to be published and parts of Services to the Client for review and approval prior to publication. The Client reviews the submitted draft at least for the accuracy of content, image, sound and text as well as other elements if the nature of the draft and/or its intended use requires this. The Client grants approval without delay unless it legitimately requests changes to the Service or part thereof submitted for approval.
    4. The Client is responsible for backing up the data on the Client's computers in an appropriate form before installing software on the computers or carrying out work on the Client's computers. In addition, the Client is responsible for regularly creating proper backup copies of its data.
    5. Otherwise, the Client's obligations to cooperate are governed by the respectively agreed Service.
    6. The fulfillment of essential obligations to cooperate by the Client is a prerequisite for the scheduled provision of services by Davies Meyer. If Davies Meyer incurs additional expenses because the Client does not fulfill its obligations to cooperate or does not do so properly, completely or on time, Davies Meyer may invoice these additionally on a time and materials basis at the applicable hourly rates. The Client reserves the right to prove lower damages and Davies Meyer reserves the right to assert damages in excess thereof.
    7. The Client designates an authorized contact person to Davies Meyer as well as a deputy in the event of absence of this contact person.

    Deadlines

    1. Deadlines for the provision of Davies Meyer's Services are only binding if Davies Meyer has expressly agreed them with the Client as binding.
    2. If there is no binding determination of the delivery and/or performance period, Davies Meyer determines the delivery and/or performance period at its reasonable, judicially reviewable discretion. The same applies to delivery and/or performance periods to be newly determined in the event of delays not caused by Davies Meyer.

    General Payment Terms

    1. The prices agreed for the commissioned Services are decisive.
    2. Davies Meyer invoices the Client for the Services upon completion or, in the case of work services, upon acceptance (acceptance can also be implied), unless the Parties have agreed otherwise in these GTC or in individual cases.
    3. For work services exceeding a price of EUR 5,000.00 net or by separate agreement, Davies Meyer is entitled to invoice the Client for one third of the agreed price immediately after placing the order, a further third after half completion of the Service and the final third upon completion of the Service.
    4. In the case of subsequently agreed service changes, Davies Meyer is entitled to increase the prices accordingly and to invoice the Client for all costs that Davies Meyer has caused to third parties on the basis of the originally agreed scope of services but can no longer cancel after the service change and therefore has to bear in vain.
    5. If the provision of a Service is delayed for reasons for which the Client is responsible, Davies Meyer is entitled to invoice the Client for all costs that Davies Meyer has incurred in vain on the basis of the agreed scope of services.
    6. Payments are due 14 calendar days after receipt of the invoice by the Client without deduction, payable in euros plus VAT and any transport and packaging costs.
    7. If the Client defaults on a payment, Davies Meyer may demand a reminder fee of EUR 10.00 per further reminder or step in court dunning proceedings in addition to the statutory default interest. The right to assert further damages remains unaffected by this provision.
    8. Objections to invoices from Davies Meyer must be raised in writing within eight (8) weeks of receipt of the invoice. Failure to raise objections in time is deemed to be approval. Mandatory statutory claims after the deadline remain unaffected.
    9. GEMA fees or fees for other collecting societies are borne by the Client. If such fees and/or costs are exceptionally advanced by Davies Meyer, the Client is obliged to reimburse them upon proof.
    10. Unless otherwise agreed between the Parties, Davies Meyer is entitled to invoice the Client separately for travel costs. Travel by own car is billed at a flat rate of EUR 0.51 per kilometer and travel by train, airplane or other publicly available means of transport is billed according to receipt. The hourly effort for travel is billed in accordance with the hourly rates agreed between the Parties.

    Acceptance

    1. Insofar as Davies Meyer provides work services within the meaning of §§ 631 ff. BGB, these require acceptance.
    2. Insofar as partial acceptances have been agreed and/or acceptances of partial deliveries and/or services take place, Davies Meyer is entitled to withhold further partial deliveries and/or services and, if necessary, to stop production orders already placed with third-party service providers if the Client is in default with the acceptance of partial deliveries and/or services or the payment of accepted partial deliveries and/or services.
    3. Acceptance may not be refused due to immaterial defects. Defects are material if the proper, i.e. economic, use of the work is not possible or is unreasonably restricted or hindered.

    Retention of Title

    1. Insofar as these are capable of ownership, Davies Meyer retains ownership of the Services until they have been paid for in full.

    Warranty for Defects

    1. If the Client is entitled to warranty claims against Davies Meyer, the limitation period for warranty claims is one (1) year. The statutory limitation periods remain unaffected in the case of fraudulent concealment of a defect, assumption of a quality guarantee, injury to life, body or health, intent or gross negligence, and in the case of liability under the Product Liability Act.
    2. Davies Meyer does not give any durability or quality guarantee within the meaning of §§ 443 or 639 BGB under any circumstances.
    3. § 377 HGB (German Commercial Code) applies accordingly to contracts for work and services.
    4. Insofar as software is defective, the Client will accept a new version of the software as part of the replacement delivery, unless this leads to unreasonable impairments.
    5. A warranty for material defects does not apply to defects that are based on the fact that software or hardware is used in a hardware and/or software environment that does not meet the requirements or for changes and modifications that the Client has made to the software or hardware delivered by Davies Meyer without being entitled to do so by law, these GTC or prior written consent from Davies Meyer.
    6. The risk that the advertising measures carried out by Davies Meyer are legally permissible, in particular in accordance with the provisions of the Unfair Competition Act and special advertising regulations, is borne by the Client. However, Davies Meyer will point out legal risks to the Client if these become known to it during the preparation of the advertising measures.
    7. Costs incurred by Davies Meyer as a result of an unjustified complaint by the Client are to be reimbursed by the Client if the Client could have recognized that the complaint was unjustified by applying the care customary in business dealings.

    Exclusion of Liability

    1. Davies Meyer is liable without limitation for damages arising from injury to life, body or health that are based on a breach of duty by Davies Meyer, a legal representative or vicarious agent of Davies Meyer, as well as for damages caused by the absence of a quality guaranteed by Davies Meyer.
    2. Davies Meyer is liable without limitation for damages caused intentionally or through gross negligence by Davies Meyer or one of its legal representatives or vicarious agents.
    3. In the case of slightly negligent breach of material contractual obligations, Davies Meyer is liable, except in the cases of Clauses 15.1, 15.2 or 15.4, limited in amount to the typically foreseeable damage. Material contractual obligations are abstractly those obligations whose fulfillment makes the proper execution of a contract possible in the first place and on whose compliance the contracting parties may regularly rely.
    4. Liability under the Product Liability Act remains unaffected.
    5. Otherwise, Davies Meyer's liability is excluded.
    6. The limitation period for claims for damages against Davies Meyer is one (1) year except in the cases of Clauses 15.1, 15.2 or 15.4.

    Intellectual Property

    1. Unless otherwise agreed, Davies Meyer grants the Client only a simple, non-exclusive, non-transferable, temporally and territorially unrestricted, but content-wise limited to the purpose of the respective contract and the specifically agreed subject matter of the service, right to use the Services.
    2. If the Services consist of the creation or design of a website, internet presence or other internet-related service (e.g. including advertising banners), Davies Meyer grants the Client the relevant rights of use only for the agreed countries, deviating from Clause 16.1.
    3. Davies Meyer generally grants the Client rights of use to intellectual property only at the time of full payment of the associated Services. Davies Meyer grants the Client rights of use to intellectual property inherent in a work service within the meaning of §§ 631 ff. BGB only at the time of successful acceptance and full payment of this work service. Rights of use to drafts are not granted to the Client.
    4. Insofar as the Services include the intellectual property of third parties or their use requires the consent of third parties, Davies Meyer undertakes to obtain the necessary rights of use for the Client for use within the scope of the agreed Services or the necessary consent to the extent described in Clause 16.1.
    5. The rights of use granted to the Client in accordance with Clause 16.4 are limited to the specifically agreed subject matter of the service. In particular, image rights that Davies Meyer acquires for the Client, for example from other agencies such as Shutterstock or Getty, are limited in time to the publication period of the commissioned Services and in substance to their scope.
    6. Davies Meyer will inform the Client of the existence of further restrictions on rights of use, the obligation to comply with third-party license terms beyond this, and existing GEMA rights or rights of other collecting societies.
    7. Insofar as the Services include the delivery of standard software manufactured by a third party, the Client undertakes to additionally comply with the license terms provided by the respective manufacturer for this standard software.
    8. If the Services contain open source components, Davies Meyer will designate the respective open source licenses in the offer, insofar as Davies Meyer is obliged to do so under the relevant open source conditions. The Client is obliged to comply with the applicable open source conditions.
    9. The Client indemnifies Davies Meyer against all damages incurred by Davies Meyer as a result of the unauthorized use of the Services by the Client.

    Data Protection and Data Analysis

    1. In the event that the provision of Services by Davies Meyer includes the processing of personal data, the Parties will conclude a separate data protection agreement.
    2. The Client retains ownership of all data that it makes available to Davies Meyer.
    3. The results of data analyses carried out within the scope of the Services become the property of the Client.
    4. Davies Meyer is entitled to use the results obtained from data analyses for its own purposes as well.

    Confidentiality

    1. "Confidential Information" means all information of whatever nature (regardless of its designation as confidential) that has been or will be made available to the Client by Davies Meyer in relation to or in connection with the contractual relationship.
    2. Excluded from the term Confidential Information is information that the Client can prove (a) was already known to it before disclosure by Davies Meyer, (b) was publicly known at the time of disclosure by Davies Meyer, (c) was lawfully received from a third party, (d) was developed independently, or (e) Davies Meyer has separately released in writing for disclosure by the Client to third parties.
    3. The Client is obliged (a) to use the Confidential Information only for the purposes of the contractual relationship with Davies Meyer and (b) to treat the Confidential Information strictly confidentially and to take all necessary measures to preserve this confidentiality.
    4. At the request of Davies Meyer or upon termination of the contractual relationship, the Client is obliged to immediately return the Confidential Information and all copies, extracts and notes thereof to Davies Meyer or to destroy them at the request of Davies Meyer.
    5. The Client remains bound by its obligations under this clause for a period of five (5) years from disclosure of the Confidential Information to Davies Meyer.

    Force Majeure

    1. "Force Majeure" means the occurrence of an event or circumstance that prevents the agency from fulfilling one or more of its contractual obligations under the contract if and to the extent that it proves that: (a) this impediment is beyond its reasonable control; and (b) it was not reasonably foreseeable at the time of conclusion of the contract; and (c) the effects of the impediment could not reasonably have been avoided or overcome.
    2. Until proven otherwise, the following events affecting the agency are presumed to meet the requirements: war, civil war, currency and trade restrictions, lawful or unlawful acts of government, plague, epidemic (especially COVID-19), natural disaster, explosion, fire, general labor unrest such as strikes and lockouts.
    3. Insofar as the agency can invoke this clause, it is released from its obligation to fulfill its contractual obligations from the time at which the impediment makes it impossible for it to perform.

    Miscellaneous

    1. Terminations and other declarations of intent require written form.
    2. These GTC are governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods and conflict of laws rules.
    3. The place of jurisdiction for all disputes is Hamburg, to the extent permitted by law.
    4. Should individual provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions.
    5. The Client may only offset claims from Davies Meyer with undisputed or legally established counterclaims. The same applies to the exercise of a right of retention by the Client.