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General Terms and Conditions

Status: 02/2020

1. Scope and Definitions

1.1 sooii GmbH, Moritzstraße 14, 42117 Wuppertal, Germany, which provides these General Terms and Conditions, is hereinafter referred to as "sooii" or "contractor"; the other party as "client".

1.2 The terms "order", "contractor", "assignment", "contractor" and "client" are to be understood in a commercial sense. The terms "order" and "commissioning" shall refer to the contractual relationship regardless of the type of contract in question, "contractor" shall refer to the party who owes the main performance, "principal" shall refer to the entrepreneur within the meaning of § 14 BGB (German Civil Code) in whose name and for whose account the main performance is ordered.

1.3 In these General Terms and Conditions "affiliated companies" means sooii and all direct and indirect subsidiaries, holding and sister companies of sooii.

1.4 The following terms and conditions are the exclusive terms and conditions for all orders placed with sooii within the scope of these General Terms and Conditions and within the scope of the services offered by sooii (see point 2). The services of sooii are further specified by individual offers, concepts and/or layouts.

1.5 In particular for the upload of construction, drawing, planning and photo files in any file format as well as the provision and use of virtualised content on digital platforms (e.g. the internet portal "gospace") separate general terms and conditions exist and apply - these services are not covered by these general terms and conditions.

1.6 The client acknowledges these terms and conditions for the present order and all future orders placed until the effective inclusion of deviating terms and conditions and waives the validity of its own general terms and conditions of business and delivery. Deviating provisions in the General Terms and Conditions of the client are hereby expressly rejected. These shall only become part of the contract - in whole or in part - if sooii expressly accepts these conditions in writing for the respective order.

1.7 These General Terms and Conditions apply regardless of in whose name the client enters into the contract with sooii (in its own name or in the name of a third party). In the event that the client enters into an agreement with sooii on behalf of a third party (on its own behalf or on behalf of the third party), the client shall ensure that it brings these Terms and Conditions to the attention of the third party. If the third party has not agreed to the contract concluded in his name, the client shall be a party to the contract with sooii.

2.Services of sooii

2.1. sooii is a design and communication agency with a focus on virtual design, 3D visualization and architecture. The services of sooii include in particular The development and implementation of 3D architectural concepts/virtual architectural and spatial concepts (hereinafter also referred to as "concepts"), which sooii makes tangible online and interactively, as well as integrating products of clients and presenting them online via a CMS system. In addition, sooii is active in the field of virtual design, 3D visualization and architecture for clients in an advisory and conceptual capacity.

The service portfolio of sooii also includes the implementation, realisation and support as well as further development of concepts for visual and cross-media communication. The services of sooii include in particular planning and, if necessary, corresponding creative services within the framework of a respective concept.

2.2 The range of services of sooii also includes the creation and development of content solutions for clients as well as the acquisition, development, marketing and distribution of rights.

3. Scope of Services

3.1 The nature and scope of the services provided by sooii to the client are set out in sooii's offer, of which these General Terms and Conditions are an integral part.

3.2 Illustrations, layouts, descriptions by sooii in the offer are only for illustration and are only approximate. A guarantee for their compliance is not given.

4. Placing of Order

Offers from sooii are non-binding and subject to change. The binding placing of an order is generally effected by the release (via e-mail is sufficient) of the offer or cost estimate by the client and by the confirmation of the order (via e-mail is sufficient) by sooii or the commencement of the actual execution of the order by sooii.

5. Dates, Deadlines and Obstacles to Performance

5.1 Binding delivery or service dates or deadlines must be in writing.

5.2 If the cooperation of the client is required or agreed for the delivery or service of the contractor, the delivery or service time is extended by the time the client has not fulfilled this obligation.

5.3 In case of delays due to (a) changes in the requirements of the costumer, (b) insufficient conditions in the application environment (hardware or software deficits), as far as they were not known or should not have been known to the contractor, (c) problems with products of third parties (e.g. software of other EDP manufacturers), the delivery or performance date is extended accordingly.

5.4 If the contractor is unable to perform his contractual services or cannot perform them on time as a result of industrial action, force majeure or other circumstances that are unavoidable for the contractor, no adverse legal consequences shall arise for the contractor.

5.5 If the costumer orders changes or additions that are not only minor in scope, dates and deadlines that are based on the original subject matter of the contract lose their validity.

Your personal data (e.g. title, name, house address, e-mail address, phone number, bank details, credit card number) are processed by us only in accordance with the provisions of German data privacy laws. The following provisions describe the type, scope and purpose of collecting, processing and utilizing personal data. This data privacy policy applies only to our web pages. If links on our pages route you to other pages, please inquire there about how your data are handled in such cases.

6. Cooperation of the Principal

6.1 For a smooth and successful performance of the services by sooii it is essential that the client fulfils his obligations to cooperate in accordance with the established procedure. The client is obliged to provide all necessary cooperation acts always in such a timely manner that sooii is enabled to perform the contractual services within the agreed time and under the agreed conditions.

6.2 The client is obliged to provide sooii with all information, documents and data necessary for the performance of the services. He/she is also obliged to inform sooii, without being asked, of circumstances that could be of importance for the provision of services by sooii and of which the client can recognise that these are not known to sooii.

6.3 The client guarantees in the sense of an independent guarantee promise to dispose of all rights necessary for the performance of the contract and to be able to grant these rights to sooii and/or subcontractors engaged by sooii to the extent necessary without infringing the rights of third parties. The client guarantees in particular that he/she has the property rights - especially in terms of copyright and industrial property rights - to the documents and content provided by him/her and is authorised to publish and pass them on to third parties for the purpose of publication to the extent necessary for the execution of the contract.

6.4 sooii is in particular also entitled to transfer the rights granted by the client and the information, documents and data made available by the client, in particular also the necessary right of reproduction and distribution as well as the right to make them publicly accessible and the right of processing and archiving, to (sub)commissioned third parties and/or companies affiliated with sooii or to pass them on accordingly.

7. Copyrights of the Contractor, Rights of Use of the Client

7.1 The contractor grants the client exclusively those rights of use necessary for the use of the contractor's work and services to the extent agreed for the order. Unless expressly agreed in writing, no further rights of use and/or industrial property rights shall be transferred to the principal.

7.2 In case of doubt, sooii shall fulfil its obligation by granting non-exclusive rights of use within the territory of the Federal Republic of Germany for the duration of use of the work result as notified to the contractor. Any use beyond this, especially processing, requires the consent of the contractor.

7.3 However, the rights to 3D architectural concepts/virtual architectural and spatial concepts created by sooii always remain with sooii and are not transferred to the client. sooii is therefore in particular entitled to use the 3D architectural concepts/virtual architectural and spatial concepts for services to third parties without restriction and/or to market them to third parties.

7.4 Furthermore, sooii shall only transfer to the client those rights of use that have been fully remunerated by the client.

7.5 Upon request, the client is obliged to provide the contractor with written information about the scope of use.

7.6 All creative developments and design work of the contractor (in particular drafts, concepts, presentations, etc.) are subject to copyright law. The provisions of the Copyright Act shall also apply if the level of creativity required under § 2 of the Copyright Act is not reached. Any imitation of this - also of parts - is not permitted.

7.7 The passing on of presentation documents and offers of sooii to third parties, as well as their publication, duplication, distribution or other use by the client or his authorised representatives requires the prior consent of the contractor and obliges the client to pay a fee in the amount of the service concerned. This fee is based on the offer of sooii or, if such an offer is not yet available, on the usual market conditions. This also applies to the use in modified or edited form and to the use of the contractor's work and ideas underlying the contractor's services. The acceptance of a one-off presentation fee by the contractor does not constitute consent to the use of the contractor's work and services beyond this.

8. Remuneration Conditions

8.1 The remuneration for the services of sooii is determined by the individual offer of sooii, otherwise by the valid price list of sooii.

8.2 The agreed upon remuneration for service packages are, unless expressly offered, regularly not included and are therefore to be reimbursed separately by the client:

- Costs for any additional licenses (e.g. for software applications) which may be purchased at the request of the client. For this purpose sooii will prepare a cost estimate and have it approved by the client in text form;

- costs as they become necessary for graphic designs requested by the client or the acquisition of image rights. These costs, which require the prior approval in text form by the Client, will be added to the incurred and provable external costs plus 15% handling fee;

- costs for travel by sooii employees on behalf of or at the request of the client and/or courier costs.

8.3 All amounts to be paid are plus the legal sales tax at the respective legal rate at the time of invoicing. The offered prices are net prices in Euro plus the respectively valid sales tax. They are subject to the reservation that the underlying order data on the part of the client and offers or costs of possible suppliers of sooii remain unchanged.

8.4 Unless otherwise agreed, sooii's claim for remuneration for each individual service arises as soon as it has been provided.

8.5 Objections to the services are to be raised in text form immediately after receipt of the invoice at the address stated in the invoice as sender. Objections must be received by sooii within four (4) weeks of the invoice date at the latest. The omission of timely objections shall be deemed to be approval. Legal claims of the client in the event of objections after the deadline remain unaffected. sooii invoices services and deliveries after delivery or after acceptance or partial acceptance. Partial settlements are possible e.g. after reaching the milestones defined in the project plan. Invoices or partial invoices are payable within fourteen (14) days from date of invoice without discount.

8.6 If and to the extent that no order is placed, but services are used by sooii that are normally only expected to be provided in return for remuneration, then the recipient of the service shall pay sooii the usual remuneration for these services.

8.7. sooii is entitled to offset payments first against older claims against the client, regardless of the legal basis for these claims. If costs and interest have already been incurred, then sooii is entitled to offset the payments first against the costs, then against the interest and finally against the main claim.

8.8 The client may only offset against claims of sooii with undisputed or legally binding claims.

8.9 If the client changes or cancels orders, work, plans and the like or changes the conditions for the provision of services, the client shall reimburse sooii all costs incurred thereby and release sooii from all order-related liabilities to third parties and affiliated companies.

8.10. All additional services that exceed the agreed scope of services will be charged separately according to time spent in agreement with the client. The same applies to other, unforeseeable additional expenditure.

8.11. If sooii renders services that relate to a period after the end of the contract, sooii shall receive a separately agreed remuneration for this. If no separate remuneration is agreed upon, the remuneration is made according to the applicable regulations of the contract or offer and the general trading conditions. The same applies to services and deliveries which sooii provides to the client at the client's request after the expiry of the contract.

8.12. All applicable taxes, duties, GEMA-, KSK-fees and the like shall be borne by the client.

9. Accounting

9.1 Unless otherwise agreed in writing, invoices from sooii are due for payment immediately upon receipt without deduction.

9.2 In the event of late payment, sooii is entitled to default interest according to the law (§ 288 para. 2 BGB) and in the respective legal amount. The right to claim higher damages is reserved. The client reserves the right to prove a lower damage caused by default. If the client is in default or if there are objectively justified doubts about his solvency, sooii is entitled to make further services dependent on the advance payment of the amount and the settlement of open invoice amounts.

9.3 In the event of a delay in payment by the client or in the event that an application for the opening of insolvency proceedings has been made against the client, sooii is entitled to withhold or suspend the performance of the contractually agreed services. Exception: The client shall provide sooii in good time with securities in the amount of the full remuneration and external services. sooii is also entitled to perform outstanding services only against advance payment or to make them dependent on the provision of a security if circumstances exist which, when applying customary banking standards, give rise to doubts about the solvency of the client, sooii has informed the client of these doubts and the client has not been able to dispel them. Likewise, in the event of the client's insolvency, sooii may interrupt the performance of the services and demand immediate invoicing of the services rendered to date.

9.4 All invoice amounts are subject to the addition of the applicable value added tax.

10. Acceptance and Warrenty

10.1 The costumer shall accept the services of the contractor (if applicable, in accordance with the checklists provided by the contractor for its support) without delay as soon as the contractor notifies the costumer that the services are ready for acceptance, unless the non-acceptance is not due to a significant defect in the services provided by the contractor.

10.2 Contractor's Services shall be deemed to be accepted if contractor has notified readiness for acceptance with reference to the significance of the failure to issue a declaration of acceptance and (a) costumer thereupon fails to declare acceptance or refuses acceptance, stating material defects to be specified in detail to the best of its ability, within a period of time which allows it to detect material defects in the required careful inspection, but no later than after 20 (twenty) working days, or (b) costumer uses the Services or parts thereof without further inspection, e.g. by using the Services or parts thereof for the purpose of the performance of the contract e.g. by making them accessible to third parties (e.g. by putting them on the net) or by commissioning the contractor to do so.

10.3 If readiness for acceptance is not notified, the time at which the Costumer should reasonably have been aware of the services shall apply instead of the time of notification.

10.4 Obvious defects that are easily noticed by an average costumer must be reported in writing to the contractor by the costumer within ten (10) working days after delivery or performance. Defects that are not obvious must be notified to the contractor in writing within ten (10) working days of their detection. Otherwise, claims arising from these defects cannot be asserted. To the best of the contractor's ability, the defects must be reproduced in detail by the costumer.

10.5 Defective deliveries or services shall be repaired or replaced by the contractor within the warranty period of six (6) months, which shall commence on the date of performance/delivery or acceptance, after the contractor has been notified accordingly by the costumer. The contractor shall remedy the defects free of charge or provide the costumer with a corrected release version of the digital contents (modified version which no longer contains the notified defect) free of charge. Any additional expenses will be invoiced according to time and effort.

10.6 In case of defects, the contractor is entitled to rectify the defects twice within a reasonable period of time. 

11. Liability

11.1 The liability of sooii - as well as their legal representatives or vicarious agents - is limited to intent and gross negligence and is limited to the respective order amount.

11.2. sooii is not liable (a) for the content of data/documents and/or advertising transmitted by the client and (b) for the legal admissibility of advertising and/or communication statements or appearances of the client and is in particular not obliged to have legal checks carried out in this regard. The client shall indemnify sooii from all claims of third parties - including the costs of the necessary legal defence, which can be asserted in this context and in connection with the execution of a respective form of advertising or an order.

11.3 The aforementioned limitations of liability shall not apply with regard to damages resulting from injury to life, body or health. Otherwise sooii is only liable for negligence if an obligation is violated, the observance of which is indispensable for the achievement of the purpose of the contract (so-called cardinal obligation). The term cardinal obligation refers to such obligations whose fulfilment is essential for the proper performance of the contract and on whose compliance the client may regularly rely. In such cases, liability is limited to the foreseeable and typically occurring damage.

11.4 Insofar as liability is excluded, this also applies to the personal liability of employees, representatives, subcontractors and other staff sooii.

11.5 All claims for damages against sooii are subject to a limitation period of one year. The statute of limitations begins with the emergence of the respective claim for damages and the knowledge or grossly negligent ignorance of the client of the grounds for the claim and the person of the infringer; regardless of this, the claim for damages becomes statute-barred after three years from the infringement.

The one-year limitation period does not apply to injuries to life, body or health.

12. General Information

12.1. sooii is entitled to use implemented orders and associated (company and brand) logos of the client for the purpose of self-promotion, costumer advice and public relations (e.g. by integration on the websites and social media channels operated by sooii and submission to awards) free of charge and without any time or place restrictions.

12.2 All designs and concepts remain the property of sooii.

12.3 All items, goods, services, samples and works remain the property of sooii until full payment of all claims. The extended retention of title applies explicitly.

12.4 There is no duty of disclosure with regard to incoming invoices.

12.5. sooii may call upon third parties for fulfilment in its own name.

13. Duration of Contract, Termination

Both sooii and the client are entitled to terminate the contract without notice if there is an important reason. An important reason, which entitles sooii to extraordinary termination, without prejudice to further legal rights of termination, exists in particular if

- existing contractual relationships with contractual partners of sooii are endangered by the conduct of the client

- the client is in default of payment and does not pay despite a grace period of at least one calendar week with an express warning of termination in the event of non-payment

- the client violates an essential provision of the contract and he - despite a reminder in text form - repeats the violation of the contract or, if the violation persists, does not stop it within one calendar week

- the client becomes insolvent, in particular if insolvency proceedings are opened against the assets or if the opening of insolvency proceedings is refused for lack of assets (insolvency, suspension of payments or cessation of business activity - for whatever reason - is equivalent to insolvency); §119 InsO remains unaffected.

14. Final Provisions

14.1 The contractual relationship between the contracting parties shall be subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.

14.2 The place of performance for the mutual services shall be the respective registered office of sooii.

14.3 Exclusive local jurisdiction for all legal disputes arising from and in connection with the contractual relationship of the parties is Wuppertal.

14.4 Changes, additions or collateral agreements to these General Terms and Conditions or the individual order must be in writing to be effective. This shall also apply to any change to this written form requirement.

 

The German version is authorative; the English translation is for information purpose only.