Terms & conditions
Terms & conditions of webtofly GmbH, as of 30 June 2023
General terms and conditions of webtofly GmbH
1. General, scope
(1) The following general terms and conditions apply to all business relationships between webtofly GmbH (hereinafter webtofly) and its customers. webtofly provides all services exclusively on the basis of these general terms and conditions (T&C).
(2) These T&C supplement the individual agreements on the services commissioned by the customer in each case. Where the individual agreements provide for deviating provisions, these take precedence over the provisions of these T&C.
(3) Deviating terms and conditions of the customer are not recognized unless webtofly has expressly agreed to them.
(4) With the customer's consent, webtofly is entitled to change the content of the existing contract and these T&C, provided the change is reasonable for the customer, taking webtofly's interests into account. Consent is deemed to have been given if the customer does not object to the change within one month of receiving the notice of change.
2. Conclusion of the contract
(1) The offers from webtofly stated on the website or otherwise are subject to change and non-binding.
(2) The ordering of a service by the customer constitutes a binding offer pursuant to Section 145 BGB (German Civil Code). The contract comes into effect with the acceptance of the offer and the provision of the service by webtofly.
(3) The customer's request can be made by a submitted written order form or by an electronic declaration, where this is provided for in the individual case. The customer is bound to their offer for 14 days.
(4) Alternatively, the customer can submit an inquiry by email. webtofly then submits a separate offer by email. The contract only comes into effect upon acceptance of this offer by the customer.
3. Payment terms
(1) Unless otherwise agreed, all prices are net prices plus the applicable VAT. Usage-independent fees are due monthly in advance, usage-dependent fees upon invoicing. Payments are to be made within 5 days of the invoice date.
(2) Invoicing is carried out by email. On request and where the conditions are met (e.g. entitlement to input tax deduction), the customer can request a postal invoice against payment of a flat fee.
(3) webtofly is entitled to hand over open claims to a collection agency. Further claims in the event of late payment remain unaffected.
(4) If the customer is in default of a payment for at least 7 days, webtofly may block or withhold services. The claim to remuneration remains in place.
(5) webtofly is not obliged to perform in advance if the customer is in default of at least one monthly fee for more than four weeks.
(6) Prepaid fees are refunded on a pro-rata basis in the event of early termination of the contract, unless an extraordinary termination by webtofly is present. In this case there is a claim to the full fee for the contract term.
(7) Price changes are possible with the customer's consent. Consent is deemed to have been given if the customer does not object within one month of receipt. In the event of an objection, webtofly has a special right of termination.
(8) Billing is carried out via the SEPA direct debit procedure using the payment service provider GoCardless. The customer grants the mandate digitally via a provided payment link. The debit takes place at the agreed time.
4. Rights of use
(1) webtofly transfers to the customer the rights of use required for the respective purpose. Unless otherwise agreed, only a simple right of use is granted. webtofly reserves the right to use the created works for its own advertising purposes.
(2) The rights of use only pass to the customer after full payment of the remuneration. Transfer to third parties requires the written consent of webtofly.
(3) webtofly has the right to be named as the author. In the event of a violation of this right, the customer is obliged to pay a contractual penalty amounting to 100% of the remuneration. Further claims for damages remain unaffected.
5. Creative freedom
(1) Within the scope of the order, webtofly has creative freedom. Change requests after the order has been placed are to be remunerated separately by the customer.
(2) Delays caused by the customer entitle webtofly to adjust the remuneration. In the case of gross negligence or intent, the customer is liable for the damage incurred.
(3) The customer warrants that they are entitled to use all provided content. They indemnify webtofly against claims of third parties due to any infringements of rights.
6. Third-party services
(1) webtofly is entitled to commission third-party services required for the fulfillment of the contract in the name and on the account of the customer. The customer grants a power of attorney for this purpose.
(2) If webtofly acts in its own name, the customer indemnifies webtofly internally against all liabilities arising from the contractual relationship.
7. Liability and limitation of liability
(1) webtofly is liable without limitation in the case of intent and gross negligence. In the case of slight negligence, liability is limited to cardinal obligations and the foreseeable, typical damage.
(2) In the case of damage to life, body or health, there is unlimited liability even in the case of simple negligence. Liability under the Product Liability Act also remains unaffected.
(3) Force majeure releases webtofly from the obligation to perform. This includes, for example, natural events, official measures, failures of communication networks or third-party servers. Claims by the customer due to such failures are excluded.
8. Applicable law, place of jurisdiction, place of performance
(1) The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods.
(2) The place of performance and place of jurisdiction is the registered office of webtofly GmbH, Im Schloßgarten 1, 77971 Kippenheim.
9. Final provisions
(1) Amendments and additions to these T&C and the contracts must be made in writing. This also applies to the cancellation of this written form requirement.
(2) Should a provision be or become invalid or unenforceable, the validity of the remaining provisions remains unaffected. The contracting parties undertake to replace the invalid provision with an economically equivalent regulation. The same applies to gaps in the regulations.
Additional terms for the creation of online shops / websites
1. Subject of the contract
(1) The subject is the development and creation of an online shop or a website for the customer for presentation on the internet.
2. Development by webtofly
(1) webtofly first creates a concept with page structure and elements.
(2) The customer must approve the concept in writing within 14 days. If there is no response, webtofly may proceed on the basis of the unobjected concept. If there are more than three substantial rejections of adapted proposals, webtofly may terminate the contract and demand reasonable pro-rata remuneration.
(3) After approval, webtofly creates a prototype.
3. Creation and handover
(1) After approval or expiry of the deadline, webtofly creates the online shop or website according to the concept.
(2) The handover is carried out by upload to a server named by the customer, by handing over physical data carriers or in another reasonable way.
4. Rights of use, copyrights, references
(1) The copyrights remain with webtofly.
(2) webtofly grants the customer simple rights of use, unlimited in terms of space, time and content.
(3) The rights remain with the customer even after the end of the contract.
(4) Transfer of rights only takes place after full payment (Section 158(1) BGB). Provisional use may be permitted.
(5) For types of use not covered, the customer receives a contractually assured right of entry on reasonable terms.
(6) webtofly may use the website for reference and demonstration purposes.
(7) webtofly may be named as the author and may visibly display the copyright. In the event of changes, this must be adjusted and marked.
(8) After the end of the contract, the customer is obliged to take over domains, hosting, emails and, if applicable, licenses themselves.
5. Remuneration
(1) The remuneration is agreed individually.
(2) Additional services or corrections due to breaches of duty by the customer are charged separately.
(3) All remuneration is net plus statutory VAT.
(4) An advance payment of 50% of the agreed price is due upon placing the order.
(5) webtofly is entitled to reimbursement of necessary expenses.
6. Duties to cooperate
(1) The customer provides webtofly with all information and content required for implementation in good time.
(2) The content must be provided at the latest after concept approval.
(3) The customer is solely responsible for content, rights and licenses.
(4) In the case of fixed-term leasing models, the duty to cooperate is particularly relevant. If there is no cooperation despite a deadline being set, webtofly may complete or invoice the project in its current state.
7. Performance time and termination
(1) Delivery dates are agreed individually. Delays caused by the customer do not affect webtofly's obligation to perform.
(2) The contract may be terminated in the case of serious breaches of duty (e.g. late payment, lack of cooperation) with a deadline and a warning.
8. Acceptance and final invoice
(1) The customer is obliged to accept within 10 working days.
(2) Partial acceptances by webtofly are permissible and binding.
(3) After overall acceptance, the final invoice is created less the advance payment. Payment is due within 5 working days.
9. Warranty and liability
(1) The statutory warranty according to the state of the art applies.
(2) webtofly may provide temporary interim solutions to bridge errors.
(3) In the case of simple negligence, webtofly is only liable for the breach of essential contractual obligations or personal injury. Liability is limited to typical, foreseeable damage.
10. Confidentiality
(1) Both parties undertake to maintain confidentiality regarding all information that is not publicly known for 5 years after the end of the contract.
11. Final provisions
(1) German law applies.
(2) There are no side agreements. Changes must be made in writing.
(3) The place of jurisdiction and place of performance is 77971 Kippenheim.
12. Special provisions for website leasing models
(1) In the case of fixed-term website leasing contracts (e.g. 48 months), the full term is to be remunerated.
(2) Early termination is excluded. In exceptional cases, the remaining term is payable in full immediately.
(3) webtofly may invoice all outstanding installments in one sum.
(4) The active duty to cooperate also applies to leasing projects. If this is not met, webtofly may end or invoice the project. The obligation to pay remains in place.
Additional terms for hosting services
1. Services
webtofly provides the customer with storage space on a virtual server that is accessible via the internet. The customer can store, retrieve and manage content there.
The services enable the customer to provide content via a website or to share files with third parties. The customer can also allow third parties to store or delete content.
Data communication takes place exclusively between the handover point of the webtofly network and the server. No guarantee is given for data traffic outside this area.
webtofly guarantees a monthly availability of 99.5%, excluding maintenance times.
Backups are carried out on working days (for online shops) or monthly (for websites) on a rolling basis.
webtofly may adjust hardware and software. If additional requirements become necessary, webtofly informs the customer in good time. If there is no consent, the contract can be terminated at the time of the changeover.
Static IP addresses may be changed for technical or legal reasons. webtofly informs the customer in good time.
The customer is informed immediately by email about disruptions to the provision of services.
2. Cooperation services of the customer
The customer ensures that their own scripts or software do not endanger the stability and security of the server.
In the event of impairment, webtofly may deactivate affected content or temporarily interrupt the internet connection. The customer is informed about this.
For access, the customer receives access data. Passwords must be chosen securely and changed if misuse is suspected. After three failed attempts, access is blocked and a new password is assigned.
3. Third-party rights
webtofly acts on behalf of the customer and assumes no responsibility for possible infringements of property rights through the stored content.
The customer undertakes not to store any unlawful content or content that infringes the rights of third parties.
In the event of violations or legal objections, webtofly may temporarily deactivate the content. The customer is informed about this.
In the event of a claim by third parties, the customer must take all necessary measures to indemnify webtofly. Further rights remain unaffected.
4. Duties and obligations of the customer
The customer must provide correct contact data and keep it up to date.
The customer grants webtofly the rights to their data necessary for the fulfillment of the contract.
The services may not be used abusively or unlawfully. Prohibited are, among other things, file sharing, port scanning, MAC spoofing, DDoS attacks or the spoofing of IP addresses.
Downloads of media content may only be offered with written consent. Server resources may not be overused.
Certain services such as banner programs, chat forums or freespace offers require express authorization.
The customer is liable for all content, even if it is provided by third parties (e.g. vicarious agents). webtofly may remove content in the event of violations and set deadlines. If there is no resolution, the contract can be ended.
Sending spam is prohibited. The customer is liable for damage caused by abusive email sending.
Mass mailings, referral systems and exceeding technical limits are not permitted.
Passwords are to be treated confidentially. In the event of unauthorized access or legal claims by third parties, webtofly must be informed immediately.
The customer is obliged to back up data regularly, especially before changes or maintenance work. Backups may not be stored on the server.
webtofly may store security-relevant data in accordance with legal requirements and pass it on to authorities upon a justified request.
5. Remuneration
The prices are based on the price list valid at the time the contract is concluded.
Billing is carried out annually in advance.
Objections to invoices must be asserted in text form within eight weeks, otherwise they are deemed approved.
webtofly may announce price adjustments with a six-week notice period. If the customer does not object, these are deemed accepted. A special right of termination exists.
In the case of payment default of two months, webtofly may terminate the contract extraordinarily.
6. Contract term
The contract runs for an indefinite period and can be terminated after one year with 30 days' notice to the end of the year in text form.
An important reason for extraordinary termination exists, for example, in the case of payment default, legal violations or continued breaches of contract.
Termination must be made in writing.
After the end of the contract, all data including emails is deleted. The customer is obliged to back up data in good time.
7. Liability for defects
The statutory provisions apply.
8. Liability
For telecommunications services, the provisions of the Telecommunications Act apply.
Beyond that, webtofly is liable in the case of intent and gross negligence, and in the case of slight negligence only for the breach of essential contractual obligations as well as for damage to life, body or health.
Liability in the case of simple negligence is limited to typical and foreseeable damage.
For data losses, webtofly is only liable if the customer has fulfilled their backup obligation.
9. Change of contract terms
webtofly may change contract terms with a six-week notice period in text form. The customer can object. If there is no objection, the changes are deemed approved. webtofly expressly points out this legal consequence.
10. Data and data protection
The customer is responsible for compliance with data protection regulations. webtofly processes personal data only on the instructions of the customer. A separate data processing agreement is to be concluded.
11. Final provisions
Deviating terms of the customer only apply with express consent. Changes must be made in writing, unless otherwise regulated.
Should individual provisions be invalid, the validity of the remaining provisions remains unaffected. The parties undertake to find an economically equivalent regulation.
German law applies. The place of jurisdiction and place of performance is Kippenheim.
Additional terms for online marketing services
1. Subject of the contract
(1) The subject of this contract is online marketing measures, in particular in the areas of social media, e-commerce and performance marketing for the customer's internet and social media presences.
2. Services of webtofly
(1) During the contract term, webtofly carries out advertising campaigns to increase revenue and generate leads and optimizes the customer's online presence. For this purpose, webtofly analyzes the market environment and competitor presences and reviews the customer's website. In addition, webtofly may propose concrete measures to improve visibility and positioning in search engines.
(2) The services are provided in accordance with the current state of the art and with the care of a professional service provider.
3. Remuneration and due date
(1) A monthly flat fee according to the chosen package plus statutory VAT is agreed. Payment is made in advance at the beginning of each month.
(2) In addition, a performance-based variable remuneration applies, which is based on the revenue increase achieved in the respective period. This commission is due monthly in arrears and can be reviewed and recalculated retroactively for up to 12 months.
(3) Commissioned additional services such as concept implementation or operational support are billed according to effort on the basis of the agreed hourly or daily rate.
4. Performance disruptions
The statutory provisions apply.
5. Cooperation services of the customer
(1) The customer undertakes to actively cooperate and provides all content, data and access required for the provision of services free of charge.
(2) For concept work or analyses, the customer supports webtofly through necessary information and approvals.
(3) After corresponding information from webtofly, the customer takes the necessary technical precautions for traffic measurement.
(4) If cooperation is not provided despite a written deadline, webtofly is released from the obligation to perform for this period.
6. Legal requirements, quality guidelines
(1) The customer bears sole responsibility for the content of their website and its legal admissibility, in particular with regard to competition, media, trademark and copyright law.
(2) The customer warrants that they are the holder of all necessary rights and can transfer these to webtofly to the extent necessary for the fulfillment of the contract.
7. Rights of use; infringement of third-party rights
(1) The customer grants webtofly the necessary simple rights of use to their website and its content for the duration and scope of the cooperation. webtofly may sublicense the rights to third parties for the fulfillment of the contract.
(2) The rights to analyses and concepts developed by webtofly remain with webtofly. However, the customer receives a simple, temporally and locally unlimited right of use for application within the scope of their online marketing.
(3) In the event of a claim by third parties due to unlawful content or infringements of rights, the customer indemnifies webtofly immediately and supports webtofly in the legal defense.
8. Liability
(1) Claims for damages are excluded.
(2) Exceptions apply in the case of:
- product liability,
- intent or gross negligence,
- injury to life, body or health,
- breach of essential contractual obligations (limited to typical, foreseeable damage).
(3) Limitations of liability also apply to employees, representatives and vicarious agents.
9. Contract term and termination
(1) The basic term is 3 or 6 months. After that, the contract is extended by the same period in each case, unless terminated with 30 days' notice.
(2) The right to terminate without notice for good cause remains unaffected.
10. Final provisions
(1) Amendments and additions must be made in writing. Email satisfies this requirement. There are no verbal side agreements.
(2) Rights and obligations may not be transferred without the consent of the other party.
(3) webtofly may have services provided by subcontractors.
(4) Should individual clauses be invalid, the remaining provisions remain unaffected. The parties undertake to find a regulation in line with the economic purpose.
(5) German law applies, excluding the UN Convention on Contracts for the International Sale of Goods.
(6) The place of jurisdiction for all disputes is Kippenheim. webtofly remains entitled to sue at the customer's place of residence.
(7) The place of performance is Kippenheim.
Additional terms for search engine optimization (SEO)
1. Subject of the contract
(1) The subject of the contract is the search engine optimization (SEO) of the domain provided by the customer with the aim of achieving the best possible positioning in the organic search results of relevant search engines and increasing the traffic to the website.
2. Services of webtofly
(1) During the contract term, webtofly optimizes the findability of the customer's website in search engines. For this purpose, market analyses, competitor comparisons and a technical and content review of the website are carried out. On request, the customer receives concrete proposals for optimization measures.
(2) The services are provided according to the current state of the art and with the care of a professional provider.
3. Remuneration and due date
(1) For the agreed services, a monthly flat fee according to the booked package plus statutory VAT is due. Payment is made in advance at the beginning of the month.
(2) Costs for link marketing (e.g. paid links) are billed separately and transparently. These are to be paid within 5 days of receipt of the invoice.
(3) Further services such as technical implementation of concepts or consulting are billed according to effort at the agreed hourly or daily rate.
4. Performance disruptions
The statutory provisions apply.
5. Cooperation services of the customer
(1) The customer provides all information and access required to carry out the SEO measures.
(2) When creating analyses or concepts, the customer supports through active cooperation.
(3) For the technical implementation of the tracking and analysis functions, the customer takes the necessary precautions after coordination with webtofly.
(4) If the customer does not fulfill their duties to cooperate despite a request, webtofly's obligation to perform for the affected period ceases to apply.
6. Legal requirements and search engine guidelines
(1) The responsibility for the content of the website lies solely with the customer. This applies in particular to legal aspects such as copyright, trademark and competition law.
(2) The customer ensures that they have all necessary rights to the content and can grant these to webtofly to the extent necessary for the fulfillment of the contract.
7. Rights of use and third-party rights
(1) webtofly receives simple rights of use to the content of the website for the duration and scope of the provision of services. Sublicensing to commissioned third parties or search engine operators is permitted.
(2) Analyses and concepts remain the property of webtofly. The customer receives a simple, unlimited right of use for application within the scope of the SEO measures.
(3) In the event of a claim against webtofly by third parties (e.g. due to infringements of rights by the customer's content), the customer indemnifies webtofly on first demand and bears all costs incurred. The customer undertakes to actively cooperate in defending against such claims.
8. Liability
(1) Claims for damages, on whatever legal basis, are generally excluded.
(2) Excepted from this are:
- liability under the Product Liability Act,
- intentional or grossly negligent conduct,
- injury to life, body or health,
- breach of essential contractual obligations (here limited to typical, foreseeable damage).
(3) These liability regulations also apply in favor of employees and vicarious agents of both parties.
9. Contract term and termination
(1) The contract initially runs for 3 or 6 months and is automatically extended by the same period if there is no timely termination with 30 days' notice to the end of the term.
(2) An extraordinary termination for good cause is possible at any time, for example in the case of repeated breach of contract despite a warning.
10. Final provisions
(1) Amendments and additions to this contract must be made in writing. This also applies to the waiver of the written form. Email is sufficient.
(2) Rights and obligations under this contract may only be transferred with the consent of the respective other party.
(3) webtofly may delegate services wholly or partly to subcontractors.
(4) Should individual provisions of this contract be or become invalid, the remaining provisions remain unaffected. In place of the invalid clause, an economically equivalent regulation as far as possible applies.
(5) Exclusively German law applies, excluding the UN Convention on Contracts for the International Sale of Goods.
(6) The place of jurisdiction is Kippenheim. webtofly is entitled to sue also at the customer's registered office.
(7) The place of performance is Kippenheim.
webtofly GmbH · Im Schloßgarten 1 · 77971 Kippenheim · As of 30 June 2023