General Terms and Conditions – PHOCUS DC

1.1. The following General Terms and Conditions apply to all contracts and agreements on services between the company Phocus Direct Communication GmbH and the Client. Once these Terms and Conditions have been agreed between the parties, they also apply to all future business relationships of the parties unless the parties mutually agree in writing to exclude this consequence. The General Terms and Conditions of the Client only apply when expressly agreed in writing. In cases of conflict, the General Terms and Conditions of Phocus Direct Communication GmbH shall take precedence.

1.2. Any deviations from the General Terms and Conditions listed in this document are only effective when explicitly approved by Phocus Direct Communication GmbH in writing.

1.3. If any of the provisions below is or becomes fully or partially invalid, this shall not affect the validity of the remaining clauses. The statutory provisions shall then apply instead of the invalid provision.

2.1. The type and scope of the services to be performed by Phocus Direct Communication GmbH is based on the provisions of the contract concluded for the individual case concerned. Oral agreements are only effective when confirmed in writing by Phocus Direct Communication GmbH.

2.2. Offers made by Phocus Direct Communication GmbH remain non-binding until the contract has been concluded.

2.3. If Phocus Direct Communication GmbH performs services on behalf of the Customer that are not contained in the cost estimate or the written order confirmation, these are classified as additional orders for which a separate additional invoice will be produced.

2.4. If the Client chooses not to use agreed services, this shall not result in a reduction of the entitlement to remuneration of Phocus Direct Communication GmbH.

2.5. If the Client violates contractual obligations, Phocus Direct Communication GmbH is entitled to suspend the provision of services to the Customer until they fulfil these obligations. In such cases, the Client is not entitled to any reductions, reimbursement or compensation.

2.6. If Phocus Direct Communication GmbH is not provided with sales, work or address material on time and free of charge as specified in the contractual terms and conditions, it is entitled to charge the Client for any costs incurred as a result of the delay.

2.7. Intended delivery and performance periods are only binding for Phocus Direct Communication GmbH when explicitly confirmed in writing. They begin on the date specified in the written order confirmation and/or the contract at the earliest.

3.1. If the parties have not agreed on remuneration in writing, Phocus Direct Communication GmbH shall receive the remuneration owed on the basis of the applicable price list of Phocus Direct Communication GmbH.

3.2. If the parties have not agreed otherwise in writing, the Client must make a down payment totalling 25% of the agreed order value before the start of the work/service. Phocus Direct Communication GmbH reserves the right to suspend the start of the work/service until the down payment is received in one of its accounts.

3.3. In the case of cancellation of the work/service specified above up to two weeks before the start of the order, Phocus Direct Communication GmbH is entitled to claim a cancellation fee totalling 25% of the agreed order value. In the case of late cancellations up until the start of the work/service, a cancellation fee totalling 40% of the agreed order value will be charged. Postponements of the start of the work/service are free of charge up to four weeks before the originally agreed start date. A processing fee totalling €300.00 will be charged in the case of postponements a month or less before the originally agreed start date.

3.4. With the exception of the down payment and the final invoices at the end of the work/service, invoices will be issued on a monthly basis unless a provision to the contrary has been explicitly agreed between the contracting parties in writing. If, however, circumstances come to light that call the creditworthiness of the Client into question, especially if payments are suspended, Phocus Direct Communication GmbH is entitled to immediately charge the Client for the entire residual debt. In such cases, Phocus Direct Communication GmbH is furthermore entitled to demand advance payments or security deposits.

3.5. Depending on the agreement, effective calls (“Nettokontakte”) will be factored into the calculation. An effective call is a personal telephone call with the specified contact. If the contact cannot be reached after at least one attempted call per day on five different days, this will also be classified as an effective call and invoiced. If prices are calculated based on an hourly rate, the individual hourly rates agreed upon in the contract shall, however, apply.

3.6. The value-added tax applicable in each case will be added to the prices specified.

3.7. All payments are due without any discounts immediately after receipt of the invoice and within 30 days after the issuing of the invoice at the latest. Payments must be transferred to the Phocus Direct Communication GmbH account specified in the invoice without any charges.

3.8. Phocus Direct Communication GmbH is entitled to initially offset payment against the Client’s existing debts, even if the Client has contrary provisions. If costs and interest for the existing claims have already accrued, Phocus Direct Communication GmbH is entitled to first offset the payment against costs, then against interest and finally against the principal claim. In such cases, Phocus Direct Communication GmbH will inform the Client about how the payment has been offset.

3.9. If the Client is in default of payment, Phocus Direct Communication GmbH is entitled to charge interest to the amount of the interest rate for overdraft credit calculated by its commercial banks plus statutory value-added tax from the time of default onwards. Interest should only be reduced if the Client provides explicit evidence of a lower charge.

3.10. The offsetting of or rights of retention against claims made by Phocus Direct Communication GmbH is only permitted in the case of uncontested or illegally established claims. The client is only permitted to assign claims to third parties with prior written consent from Phocus Direct Communication GmbH.

4.1. If unforeseen circumstances that have significant economic, technical or legal impacts on the contract and for which no provisions were agreed in the contract or which were not factored into the conclusion of the contract occur during the term of the agreement and any contractual provision becomes unreasonable for the party as a result of these circumstances, the party concerned is entitled to demand a corresponding adjustment of the contractual provisions that accommodates the changed circumstances in consideration of all economic, technical and legal impacts on the other party.

4.2. The party that invokes such circumstances must present and provide evidence of the necessary facts.

4.3. The entitlement to changes to the contractual provisions applies from the time at which the party making the claim demands changes to the contractual provision due to changed circumstances, as specified in paragraph 4.1 above, for the first time.

The goods will remain the property of Phocus Direct Communication GmbH until all claims have been fully settled by the Client.

Insofar as copyrights arise for Phocus Direct Communication GmbH or its employees within the scope of the performance of the contract, Phocus Direct Communication GmbH shall grant the Client the rights of use required for the performance of the contract. These rights are settled upon for payment of the remuneration to Phocus Direct Communication GmbH.

7. Liability Limitations

7.1. Phocus Direct Communication GmbH is only liable for the loss of sales, work or address material if it is responsible for this loss.

7.2. Phocus Direct Communication GmbH assumes no liability for the correctness of the print documents to be produced with regard to text, completeness, status and colouring insofar as these documents were submitted to the Client to be checked.

7.3. Services will be performed on the basis of the current level of knowledge and awareness of Phocus Direct Communication GmbH. No liability will be assumed for this.

7.4. Phocus Direct Communication GmbH is not liable for the rights of third parties affected by the performance of the work/service specified. Phocus Direct Communication GmbH is especially not liable for violations of the competition rights, rights to names, trademark rights or copyrights of third parties.

7.5. Phocus Direct Communication GmbH is not liable for the content of documents and specifications of the Client.

7.6. In the cases specified in paragraphs 7.4 and 7.5, an exclusion of liability shall only not be considered if the violation of rights was obvious to Phocus Direct Communication GmbH beforehand.

7.7. Phocus Direct Communication GmbH is generally only liable for intent and gross negligence. In the case of failure to fulfil essential contractual obligations, the liability is limited to damages that Phocus Direct Communication GmbH could typically have expected to occur when concluding the contract based on the circumstances of which it was aware at the time. Liability for indirect damages, consequential damages or loss of profit is excluded. These liability limitations also apply to employees of Phocus Direct Communication GmbH and third parties contracted by Phocus Direct Communication GmbH.

8. Confidentiality, Data Protection and Headhunting of Employees

8.1. The parties undertake to maintain confidentiality with regard to any business transactions of the respective other party or of any companies associated with or in business contact with the other party of which they become aware during the cooperation.

8.2. Phocus Direct Communication GmbH notes that the relevant data protection regulations are complied with and stored data are only disclosed to the person responsible for them.

8.3. Employees of Phocus Direct Communication GmbH are only allowed to be employed as members of staff of a client 15 months after the end of the work/service ordered at the earliest. If this provision is violated, Phocus Direct Communication GmbH is entitled to demand a fine for breach of contract totalling €15,500.00.

9.1. If an order is placed without written confirmation, the corporation shall end at the end of the project unless agreed otherwise between the parties.

9.2. In the case of open-ended contracts, the contract can be terminated by both parties observing a period of notice of six weeks valid from the end of a calendar month.

9.3. In the case of fixed-term contracts, termination before the end of this term are only possible on important grounds.

9.4. If the contract is terminated by the Client, the Client must pay Phocus Direct Communication GmbH compensation for the damages incurred as a result of expenditure already incurred in connection with the order volume.

10.1. The assignment of rights and claims arising from the contract is only permitted with prior written consent from Phocus Direct Communication GmbH.

10.2. The place of performance and sole place of jurisdiction is Nuremberg, Germany.