1. Scope of General Terms and Conditions
1.1 These are the general terms and conditions of LMP-MEDIA-GROUP (hereinafter referred to as "LMP-MEDIA") regarding the IT services and products offered by LMP-MEDIA. The subject of these is the regulation of the legal relations between LMP-MEDIA and the customer in relation to the ordered IT-services and products.
1.2 The offer of LMP-MEDIA is directed exclusively at customers, who are entrepreneurs in the sense of § 14 BGB and/or legal entities, tradesmen as well as self-employed persons and/or freelancers.
1.3 These General Terms and Conditions shall apply exclusively to the contractual relationship. Conflicting or more extensive terms and conditions of the customer shall not become part of the contract. They also develop no effect if LMP-MEDIA has not contradicted them in the individual case.
1.4 The general terms and conditions are supplemented by the respectively valid product description. These documents are available at any time under www.LMP-MEDIA.de and can be downloaded, stored and printed there by the customer.
1.5 Individual agreements between LMP-MEDIA and the customer take precedence over these general terms and conditions in the area of the individually agreed contract condition in each case (cf. § 305b BGB) and are then supplemented by these general terms and conditions. The offer and/or the order documents as well as the invoice of LMP-MEDIA are valid as individual agreements, which take precedence over these general terms and conditions. Individual agreements require text form to be effective.
2. Modification of the general terms and conditions
2.1 LMP-MEDIA is entitled to change the general trading conditions after conclusion of a contract, as far as thereby substantial regulations of the contractual relation are not affected and this is necessary for the adjustment to such developments, which were not foreseeable with conclusion of a contract and whose disregard would impair the balance of the contractual relation not insignificantly. Material provisions are, in particular, those concerning the type and scope of the contractually agreed services, term and termination.
Furthermore, adjustments or additions may be made insofar as this is necessary to eliminate regulatory gaps that have arisen after the conclusion of the contract. This may be the case, in particular, if case law changes and one or more clauses of these General Terms and Conditions are affected.
2.2 Amendments to these General Terms and Conditions shall be communicated to the Customer in text form in good time before their planned date of entry into force. The Customer shall have the right to object to the notified amendments.
If the client does not object to the changes in text form within a reasonable period of explanation determined by LMP-MEDIA in the individual case after receipt of the change notification, the changes become effective at the planned time and become part of the contract.
The client shall be specifically informed of this consequence in the notification of change. If the client objects in due time, the previous terms and conditions shall remain valid.
If the client objects to the changed general terms and conditions for LMP-MEDIA, LMP-MEDIA shall be entitled to a special right of termination with the notice period of one month. LMP-MEDIA has to exercise this right of termination within 4 weeks after objection of the customer in text form.
3. Change of IT-services and products and price
3.1 LMP-MEDIA shall be entitled to increase the agreed prices after the conclusion of the contract to the extent of price increases of third parties from whom LMP-MEDIA obtains preliminary services necessary for the execution of the contract. The agreed prices shall also increase to the extent that it is caused by an increase of the value added tax or mandatory legal charges.
3.2 Changes of LMP-MEDIA or the functionalities contained therein and its price will be communicated to the customer in text form in due time before they become effective.
The client has the right to object to the notified changes. If the client does not object to the changes within 7 days after receipt of the change notification in text form, the changes will become effective at the scheduled time and become part of the contract.
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The client will be specifically informed of this consequence in the change notification. If the Principal objects to the change of LMP-MEDIA or its functionalities or its price, LMP-MEDIA shall be entitled to terminate the contract with a notice period of one month. LMP-MEDIA has to exercise this right of termination within 4 weeks after the objection of the client.
4. Conclusion of contract
4.1 All offers of LMP-MEDIA are in principle subject to change. An offer by LMP-MEDIA is only binding if this is expressly so designated in writing or text form. If nothing else is noted, the offer with the calculated prices and services is binding for LMP-MEDIA for a period of four weeks.
4.2 The customer places a binding order for the service offered by LMP-MEDIA on the basis of the non-binding offer of LMP-MEDIA.
4.3 Order confirmations are in principle not tendered. However, if the order is concluded by telephone, verbally or online, a confirmation letter in text form by LMP-MEDIA is required. Also all other verbal agreements require a confirmation by LMP-MEDIA in text form.
4.4 The contract comes off implied with performance by LMP-MEDIA and/or with the entrance of an order confirmation in text form.
4.5 With the order the client assures to be an entrepreneur in the sense of § 14 BGB, legal entity, tradesman or self-employed person or freelancer.
4.6 LMP-MEDIA is entitled at any time to reject orders at its own discretion or to withdraw from the contract, without the customer being entitled to any claims for damages, if it turns out that the content or form of the owed service violates changed legal regulations.
4.7 A right of withdrawal of LMP-MEDIA exists furthermore in case of justified doubts about the creditworthiness of the customer.
5. Subject matter of the contract
5.1 Part of the contract are the order documents, in particular the offer and a possibly advertised order confirmation of LMP-MEDIA as well as these general terms and conditions. Individual agreements require text form to be effective.
5.2 Subject matter of the contract are the IT-services and products of LMP-MEDIA, which are specified in more detail in the order documents.
5.3 The client shall specify the task. On this basis the task fulfillment is planned together.
5.4 It is incumbent on LMP-MEDIA alone to decide which employees are used for the concrete task fulfillment. Thereby own and freelance employees as well as other enterprises can be used in the context of the order fulfillment. Independently of this, LMP-MEDIA reserves the right to exchange employees at any time.
5.5 The employees used for the fulfillment of the task are exclusively subordinated to the instructions of LMP-MEDIA, regardless of whether the service is rendered directly at the client's site. The employees shall not be integrated into the operations of the Client. The Client may only submit suggestions and tasks to the person responsible for the project or to the account manager of LMP-MEDIA, but not directly to the individual employees.
5.6 The deadlines stated in the implementation and project plans are usually estimated times, unless it is clear from the agreements made between the parties that deadlines have been made binding.
5.7 If LMP-MEDIA is dependent on cooperation or information of the client and the service is delayed due to lack of / due to delayed cooperation or if the service provision is hindered due to force majeure, e.g. war, riots, natural disasters or due to similar events like e.g. strike, lockout, official intervention or other circumstances not caused by LMP-MEDIA, agreed deadlines shall be extended by a reasonable period of time.
5.8 In such a case LMP-MEDIA will inform the client about the circumstances of the hindrance and after its end will immediately agree on a new date for the performance.
5.9 During the term of the contract and the associated use of LMP-MEDIA systems, the Client may propose changes and adjustments at any time.
5.10 Requests for changes and / or adaptations by the client will be answered by LMP-MEDIA in writing by means of a statement regarding a corresponding feasibility as well as the preparation of a corresponding offer.
5.11 With the acceptance of the offer by the customer, a contract comes into being between the customer and LMP-MEDIA with contents changed according to the offer. The remuneration for this is based on the price list of LMP-MEDIA current at that time.
5.12 Until the conclusion of the amended contract, all other work shall continue to be carried out according to the existing contracts. However, the client is entitled to demand the complete or partial interruption of any work. Any resulting delay in performance or deadlines shall, however, be borne by the client.
6. Acceptance
6.1 If an order of the customer consists of several individual works that can be used independently of each other, the customer shall accept each individual work separately and in a timely manner.
6.2 If market products are used as a basis or tool for the realization of an order, functional limitations and errors caused by these products shall not constitute grounds for refusal of acceptance.
6.3 Concepts and requirement specifications of the customer require the written acceptance by LMP-MEDIA. Concepts and specifications of LMP-MEDIA must be accepted by the client before a realization. A written order from the content of these elaborations represents a defect- and error-free acceptance.
6.4 The client must check the result within 5 working days and notify any defects or declare acceptance. The service shall be deemed to have been accepted if the Client neither notifies defects nor declares acceptance within this period. Insignificant defects shall not entitle the Customer to refuse acceptance.
6.5 Notices of defects, which are at the expense of market products, shall be reported by LMP-MEDIA to the supplier for remedy, as far as remedy is necessary for the provision of services by LMP-MEDIA.
7. (Cooperation) obligations of the customer
7.1 The customer is aware that the provision of the services included in LMP-MEDIA as well as their quality can be decisively dependent on his cooperation. For this reason the customer is obliged to support LMP-MEDIA in the provision of the agreed services to the best of his ability, to create the necessary preconditions for the proper execution of the order, which are within his operational and risk sphere, and furthermore to fulfill the obligations imposed on him according to this clause 7 in time and in full.
7.2 These duties shall include, but not be limited to, the following duties:
7.2.1 Contract Data
The client is obligated to provide all contract data requested upon conclusion of the contract completely and truthfully.
Furthermore the client has to inform LMP-MEDIA immediately in text form about all changes of the contract data and all essential circumstances, which are needed for the contract execution.
7.2.2 Legal concerns
The client shall clarify all legal issues, in particular professional, competition, trademark, copyright, personality, data protection and name law issues, on its own initiative before placing the order.
7.2.3 Securing access data provided
The client is obliged to treat handed over access data strictly confidentially and to protect it against the knowledge of unauthorized persons to the necessary extent. He shall inform LMP-MEDIA immediately as soon as he becomes aware that these access data have become known to unauthorized third parties.
The client shall not be permitted to make the access data and/or the services based on the access available to third parties for the purpose of use without prior agreement with LMP-MEDIA.
7.2.4 Other obligations to cooperate
For the use of the LMP-MEDIA-systems the client has to provide for the appropriate working environment (workstations, network) according to the specifications of LMP-MEDIA.
The client has to cooperate free of charge in the fulfillment of the order, especially in implementations and the execution of works, by providing e.g. employees, working rooms, hard- and software, data, and telecommunication facilities. He grants LMP-MEDIA access to hard- and software directly and by means of remote data monitoring. He shall answer questions, check results and test systems provided by LMP-MEDIA without delay. Any errors or deficiencies shall be notified to LMP-MEDIA immediately upon knowledge.
The client shall name one or more contact persons as well as their communication data under which the contact person(s) can be reached. The contact person(s) must be in a position to make the necessary decisions for the client or to bring them about immediately.
The contact person(s) shall ensure a good cooperation with the contact persons (usually project managers, account managers) of LMP-MEDIA. The client's employees are to be released from other activities to an appropriate extent for these activities.
The client shall be obliged to use the services and systems provided by LMP-MEDIA in accordance with the respectively valid legal regulations, any official orders and the contractual agreements made with LMP-MEDIA.
7.2.5 Legal consequences of a breach of (cooperation) obligations
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Reference is made to the obligation to indemnify or the liability of the customer in the case of a claim against LMP-MEDIA by a third party in the case of a breach of the (cooperation) obligations according to item 10 of these general terms and conditions for LMP-MEDIA.
Furthermore, LMP-MEDIA shall not be in default with the fulfillment of its obligations to perform, as far as a delayed or omitted fulfillment of an information, cooperation or other obligation of the customer is (co-)causal for this.
In case of delays in the provision of individual contractual services due to omitted or delayed cooperation of the customer, LMP-MEDIA's claim for remuneration as well as its due date shall remain unaffected.
8. Granting of rights
8.1 The client irrevocably grants LMP-MEDIA, to the extent necessary for the fulfillment of the contract, the simple but transferable right of use, unrestricted in time, content and territory, with regard to the provided contents as well as results produced as a result of the performance of the service.
The transfer of rights includes the complete granting of rights with regard to all already known as well as future types of use.
8.2 The client agrees that LMP-MEDIA may use the results or parts thereof, which have arisen as a result of the provision of the service, for reference purposes for its own advertising.
8.3 LMP-MEDIA is the exclusive owner and proprietor of the service, the software, all graphics, logos, trademarks and names used by LMP-MEDIA in connection with the products.
8.4 Furthermore, with the creation of the service, LMP-MEDIA becomes the owner of all intangible property rights, in particular copyrights, to the results, e.g. concepts, planning documents, specifications, developments, documentations, studies, inventions, user or maintenance manuals as well as other documentations.
8.5 The Customer shall be free to make suggestions to LMP-MEDIA for the improvement of the service. By doing so, however, the Customer acknowledges and recognizes that all rights to the improvements and/or changes accompanying such suggestions are vested in LMP-MEDIA and that LMP-MEDIA is under no obligation to compensate the Customer for such suggestions.
8.6 If the client acquires copyrights to the results through his cooperation, he transfers to LMP-MEDIA the exclusive right, unlimited in time, place and content, to process, exploit, market and otherwise use these results in any conceivable way.
8.7 If the results are protectable, LMP-MEDIA shall be entitled to apply for the corresponding property rights at its own discretion and in its own name in any countries, to maintain them or also to drop them at any time.
9. Rights of use of the customer
9.1 After full payment, the customer shall be entitled to the simple right of use of the work results, limited in time to the duration of the contract period and limited in content for his own purposes within the projected scope, unless otherwise agreed
9.2 With the granting of the license of use LMP-MEDIA grants the Client a non-exclusive right, limited in time as well as in content to the duration of the business relationship, non-transferable and revocable, to use the offered products under the conditions and purposes described in the offer or contract.
9.3 Any other and / or further use or exploitation is excluded. LMP-MEDIA assures in this context that it is the right holder or licensee of all offered programs of third party providers and that it has been granted all - for the service towards the Client required - corresponding rights of use.
10. Liability of the customer and indemnification
The client indemnifies LMP-MEDIA and LMP-MEDIA's vicarious agents from all claims of third parties, which they assert against LMP-MEDIA or LMP-MEDIA's vicarious agents due to the violation of one of the above duties of the obligations mentioned in clauses 8 and 9. This also includes the compensation of the damages resulting from this, including the costs for an adequate legal defense.
11. Warranty and liability of LMP-MEDIA
11.1 LMP-MEDIA warrants that the software which is the subject matter of the contract will have the functions specified in the service description during the term of the contract. LMP-MEDIA assures to carry out the assumed work with the greatest care and to the best of its ability. In this context, the Principal shall immediately notify LMP-MEDIA of program errors, need for changes and other circumstances indicating the necessity of maintenance measures.
11.2 Errors communicated by the client, are repaired within an appropriate period for this. If the error removal proves to be impossible, LMP-MEDIA will offer an alternative solution.
11.3 In particular, LMP-MEDIA does not guarantee the uninterrupted availability of the service as well as the quality of the services.
11.4 LMP-MEDIA has no influence on the transport of data via the internet. LMP-MEDIA therefore also does not take over guarantee for the fact that sent messages reach the receiver correctly.
11.5 A certain performance result or even a certain success are not owed in principle. If the provision of a certain service result is expressly agreed upon and LMP-MEDIA for whatever reason cannot provide the owed service result at the agreed upon time, LMP-MEDIA shall be entitled to make up for the owed service result.
11.6 If the Client refuses an inspection of the notified defects, the assertion of further warranty claims by the Client shall be excluded. If notified defects can no longer be reproduced after joint inspection, the notification of defects and thus also the defect shall be deemed to have been eliminated.
11.7 The guarantee is excluded for defects / damages, which arise after handing over to the client as a result of faulty or negligent treatment on the part of the client or his assistants / representatives, his / her disregard of instructions of LMP-MEDIA or due to special external influences outside the area of responsibility of LMP-MEDIA.
11.8 If non-agreed changes are made to programs or systems by the customer or third parties, the warranty is also excluded for these and the resulting consequences. Properties are not guaranteed by LMP-MEDIA.
11.9 In case of wholly or partly defective performance for which LMP-MEDIA or its partner is responsible, the Customer shall have a claim against LMP-MEDIA for rectification of defects. If the rectification has failed, the customer shall have the right either to an appropriate reduction of the remuneration (abatement) or to withdraw from the contract. The rectification shall be deemed to have failed after the third unsuccessful attempt. Further claims of the customer are excluded.
11.10 LMP-MEDIA is liable according to the legal regulations for damages to life, body and health, which are based on a culpable breach of duty of LMP-MEDIA, LMP-MEDIA's legal representatives, employees or vicarious agents, as well as damages, which are covered by the liability according to the product liability law.
11.11 Unforeseeable events, such as force majeure, strikes, official measures, breakdowns of means of transmission or other disturbances, for which LMP-MEDIA is not responsible, release it from the obligation to perform and warranty. Also in such a case the liability of LMP-MEDIA is excluded in its entirety.
11.12 For materials, contents and services of the client (e.g. provided employees, workrooms, hard- and software, data and telecommunication facilities), which the client makes available to LMP-MEDIA for the execution of the contract or which he publishes or distributes through the components of LMP-MEDIA, LMP-MEDIA does not assume any liability.
11.13 For other damages, which are not covered by the preceding clauses, the liability of LMP-MEDIA, no matter on which legal ground, is excluded within the scope of legal admissibility, as far as LMP-MEDIA is not charged with intent or gross negligence.
Furthermore the liability in case of slight negligence is not excluded, if LMP-MEDIA is charged with the violation of such an obligation, the fulfillment of which enables the proper execution of the contract in the first place (so-called cardinal obligation). In the latter case the liability is limited to the contract-typical foreseeable damage, at the most however to the sum of a quarterly order value.
11.14 All claims of the customer against LMP-MEDIA shall become time-barred within one year from the legal beginning of the limitation period. This does not apply to the limitation of claims based on an intentional or grossly negligent breach of duty.
11.15 As far as the liability of LMP-MEDIA is limited or excluded, this also applies to their service providers, legal representatives, employees or other vicarious agents.
12. Payment / set-off / retention
12.1 The remuneration depends in principle on the valid in each case price list of the LMP-MEDIA, as far as contractually nothing else is determined. Changes of the price list are reserved.
12.2 All prices are, except in the case of a sales tax exemption, plus the respective legally valid sales tax. LMP-MEDIA is entitled to invoice partial services, if this is reasonable for the customer. Payments are to be made with the payment date stated on the invoice / partial invoice. Discount is not granted. From 30 days after due date LMP-MEDIA is entitled to charge interest in the amount of the respectively valid legal default interest rate.
LMP-MEDIA is entitled to demand advance payments and/or payments on account for project progress. The amount of these sums shall be determined by the offer and the schedule and timetable or any other individual contractual arrangement made between the parties.
12.3 Services shall, as a rule, be invoiced by LMP-MEDIA after they have been rendered. The billing of the services shall take place on a fortnightly basis. Exceptions require separate agreement. LMP-MEDIA can demand payments on account if the duration of works and services is more than 1 month. The amount of the instalment shall be based on the degree of completion.
12.4 In case of invoicing according to time and effort, this shall be done by submitting the proofs of activity customary at LMP-MEDIA. Travel times, travel expenses and subsistence costs shall be charged depending on the place of business of the employee of LMP-MEDIA.
12.5 Cost increases for licenses and maintenance services, which are provided and charged by third parties in the context of the execution of the services between LMP-MEDIA and the Customer, will be passed on by LMP-MEDIA to the Customer unchanged.
12.6 For issued reminders (in non-commercial business transactions only from the 2nd reminder) LMP-MEDIA reserves the right to charge reminder costs. At the latest from 30 days after due date LMP-MEDIA can charge interest in the amount of the respective valid legal default interest rate.
12.7 Basically order intermediaries, external service providers and other third parties are not authorized to accept payments for LMP-MEDIA. In case of collection or cash payment note by LMP-MEDIA, advance payment or cash payment has to be made immediately when placing the order. Payments made to LMP-MEDIA's agent shall be acknowledged upon proper receipt.
12.8 LMP-MEDIA is also entitled during the term of the contract, in case of objectively justified doubts about the solvency of the customer, to make the further provision of services dependent on the settlement of outstanding invoice amounts and to assert the individual scale levels from the valid price list.
12.9 The customer is only entitled to offset and/or withhold payment if the counterclaims have been legally established or are undisputed.
13 Confidentiality and data protection
13.1 The contracting parties shall treat as confidential the trade and business secrets of the other contracting party which have become known to them in the course of the business relationship, even after termination of the business relationship.
13.2 The Customer may only make contractual items accessible to employees and third parties to the extent that this is necessary for exercising the right of use granted to it; otherwise, it shall keep all contractual items secret. He shall instruct all persons to whom he grants access to contractual objects about the rights of LMP-MEDIA to the contractual objects and the obligation to maintain secrecy.
13.3 A processing of personal data shall only take place in compliance with the applicable data protection law, in particular the DSGVO as well as the BDSG. The parties agree to conclude a contract for commissioned processing according to Art. 28 DSGVO or a contract for joint responsibility according to Art. 26 DSGVO in case of necessity.
14. Miscellaneous
14.1 Place of performance and jurisdiction for both parts is the registered office of LMP-MEDIA as far as the law does not compellingly prescribe something else.
14.2 For all legal relations, which result from the use of the services, the right of the Federal Republic of Germany applies under exclusion of the regulations to the international private right as well as the UN-purchase right.
14.3 Should provisions of these GTC and/or the separate agreement be or become invalid, this shall not affect the validity of the remaining provisions. The parties undertake to replace an invalid provision with a valid agreement whose economic success comes as close as possible to that of the invalid provision. The same shall apply mutatis mutandis to any gaps or additions made necessary by technical developments.
15. Address
LMP-MEDIA IT-Solutions e. K.
Osterweg 35g
D-25899 Niebüll
Contact:
PHONE: +49 4661 - 73 69 53 0
E-Mail: info@lmp-media.de
Register court: AG Flensburg
HRA 6982 FL
USt.-ID-Nr: DE274966988
Status of the terms and conditions: February 2023