01§ 1 Scope
These general terms and conditions apply to every contract between Ghasto Agentur (owner Hamidullah Ghafoorie, Kölner Platz 2, 53840 Troisdorf, Germany, below “Ghasto”) and its clients.
They apply only to entrepreneurs within the meaning of § 14 BGB, to legal persons under public law and to special funds under public law. With consumers, Ghasto enters into no contracts for the services described here.
Terms of the client that differ from these or add to them become no part of the contract, even where Ghasto leaves them unchallenged or performs the service in knowledge of them.
02§ 2 Quotes and conclusion of contract
Quotes from Ghasto are free of obligation unless they are expressly marked as binding. How long a binding quote stands is stated in the quote itself.
The contract comes about when the client returns the quote signed or Ghasto confirms the engagement in text form. The scope of the work is governed by the signed quote together with the order confirmation.
There are no verbal side agreements. Additions to and changes of the contract require text form.
03§ 3 Scope of work
What Ghasto owes follows from the quote and the order confirmation. Work that is listed in neither is outside what is owed.
Within the agreed engagement, Ghasto is free in how it designs and builds. The design follows the goal agreed in the briefing.
If the client wants the scope changed during the project, that requires text form. Ghasto says beforehand how the change affects the fee and the schedule.
04§ 4 What the client contributes
Ghasto works in fixed production phases. The client supplies the content, access credentials and approvals these need, in good time and in full. The following periods apply:
- replies and approvals: within 5 working days
- forms, copy, images and other material: within 7 working days
The client warrants that the content supplied is free of third-party rights, or that the client holds the rights it takes. The client indemnifies Ghasto against claims by third parties arising from the use of that content, including reasonable costs of legal defence.
Where contribution or reply stays outstanding beyond the periods named, Ghasto may pause the project for the time being. Once the outstanding material arrives, the project is scheduled into the next available production slot. Delays arising from this fall outside Ghasto’s responsibility, and agreed dates move accordingly.
05§ 5 How a project runs and how corrections work
Projects normally run through these phases: kickoff, briefing, concept and design, build, feedback, finalisation and launch.
Two rounds of corrections per phase are included in the agreed fee. The client gathers the feedback and gives it in one go.
Further rounds of corrections, and change requests that touch a phase already approved, are billed by Ghasto according to the time they take. Ghasto says so beforehand.
06§ 6 Acceptance
Once the work is finished, Ghasto tells the client in text form that it is ready for acceptance and sets a period of 14 days for acceptance.
If the client fails to refuse acceptance within that period while naming at least one defect, the work counts as accepted (§ 640 (2) BGB). Ghasto points this consequence out in the notice of completion.
If the client puts the work into use, for example by taking the website live, it likewise counts as accepted.
Partial acceptance of parts of the work that stand on their own is permitted. Minor defects are no ground for refusing acceptance.
07§ 7 Fees and payment
All prices are net and carry statutory VAT on top.
On fixed-price projects, 50 per cent of the fee falls due when the engagement is placed and 50 per cent after acceptance. Ghasto starts work once the first instalment has arrived.
Invoices are payable in full within 14 days of receipt.
Where the client falls into default, default interest of nine percentage points above the base rate is owed (§ 288 (2) BGB), together with a flat sum of 40 euros (§ 288 (5) BGB). Ghasto reserves the right to claim any further loss.
Where payment by SEPA direct debit is agreed, Ghasto announces the collection at least two days beforehand.
Where the client is in default of payment, Ghasto may stop work, after announcing it, until the outstanding amount is settled. Agreed dates move accordingly.
08§ 8 Monthly packages and ongoing care
For ongoing work such as maintenance, visibility and care, the following applies in addition: the minimum term is twelve months, counted from the day the service is made available.
The contract may be terminated in text form with three months’ notice to the end of the current term. Absent termination, it renews for a further twelve months each time.
The right of either side to terminate for good cause remains unaffected.
Work that goes uncalled in a given month lapses at the end of that month. It carries over to no later month.
When the contract ends, the ongoing care ends with it. For handing over the work results, § 10 Rights of use applies.
09§ 9 Third-party services and costs
Third-party costs sit outside the packages and fixed prices. That covers in particular domains, mailboxes, hosting and servers, templates and themes, font licences, image licences, payment services, and paid accounts and interfaces.
The client may bring existing contracts of their own, such as a domain they already hold or a mailbox with another provider. In that case the client stays the contracting party of that provider and carries the costs and the responsibility for those services. Ghasto then needs the necessary access credentials.
Where Ghasto is to procure third-party services, that happens after prior agreement. Ghasto states the expected costs beforehand and either passes them on or places the order in the name and for the account of the client.
Ongoing third-party costs are carried by the client. Where a provider changes its prices or terms, that feeds straight through to these costs.
10§ 10 Rights of use
Until the agreed fee is paid in full, every right in the work performed stays with Ghasto. Use before payment in full is permitted only with the consent of Ghasto.
On payment in full the client receives a simple right of use in the work results created for them, unlimited in time and place, for the purpose agreed in the contract.
The right of use is non-exclusive. Ghasto stays free to go on using the underlying drafts, building blocks, concepts, templates and technical components.
An exclusive right of use, a right to pass the work to third parties or a right to adapt it require a separate agreement in text form and a separate fee. Its amount follows from the scope and reach of the rights wanted and is agreed case by case.
When a care contract ends, Ghasto makes the work results as they stand at that point available to the client in a common format. A claim to source files, intermediate states or internal working files exists only so far as it was agreed.
Third-party rights in the fonts, images, templates and open-source components used remain unaffected. Their licence terms apply in addition and are for the client to observe.
11§ 11 Naming the client as a reference
Ghasto may show the work performed for the client as a reference, naming the client and using their logo, in particular on its own website, in presentations and on social networks.
The client may object to this use at any time in text form. Ghasto then removes the reference within a reasonable period.
12§ 12 Availability and reachability
Ghasto promises no particular availability, reachability, response time or loading speed. Actual availability rests to a large degree on the work of third parties, such as hosting, network operators and connected services.
Promises on availability, response times or recovery times require a separate agreement and carry a separate fee.
Maintenance work, updates made for security reasons, faults at third parties and events of force majeure can lead to temporary restrictions. Work that can be planned is announced by Ghasto beforehand where possible.
13§ 13 Warranty
Ghasto performs the work according to the recognised state of the art. Software and websites running free of faults in every conceivable combination of device, operating system and browser lies outside what is technically reachable and is therefore outside what is owed.
The client reports defects in text form without delay after discovering them and describes them so that they can be followed. Ghasto remedies defects by rectification.
The warranty period is twelve months from acceptance. That leaves untouched damage from injury to life, body or health, cases of intent and gross negligence, and claims under the German Product Liability Act.
Where the client or a third party changes the work results without agreement, the warranty for defects caused by that change falls away.
14§ 14 Liability
Ghasto is liable without limit in cases of intent and gross negligence, for injury to life, body or health, for defects concealed fraudulently, within a guarantee it has given, and under the German Product Liability Act.
Where a material contractual duty is breached slightly negligently, the liability of Ghasto is limited in amount to the loss typical for this kind of contract and foreseeable at the time. A duty is material where its performance is what makes proper performance of the contract possible in the first place and where the client may regularly rely on it being observed.
Beyond that, liability is excluded.
For the loss of data, Ghasto is liable only up to the effort that recovery would have taken had the client kept proper and regular backups.
15§ 15 Data protection and confidentiality
Where Ghasto processes personal data on behalf of the client, the parties enter into a data processing agreement under Art. 28 GDPR. The controller within the meaning of the GDPR stays the client.
Each side treats the trade and business secrets of the other as confidential and uses them solely to perform the contract. This duty outlives the end of the contract.
The client passes on access credentials solely through the routes Ghasto provides for it. Passing them by email or chat should be avoided.
16§ 16 Final provisions
The law of the Federal Republic of Germany applies, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
The sole place of jurisdiction for every dispute arising from this contractual relationship is the seat of Ghasto in Troisdorf, so far as the client is a merchant, a legal person under public law or a special fund under public law. Ghasto stays entitled to sue at the general place of jurisdiction of the client.
The place of performance is Troisdorf.
Changes and additions to these terms require text form. That applies to lifting this text form requirement as well.
Where these terms are made available in another language, the translation serves understanding alone. In every case the German version is the binding one.
Should a provision of these terms be or become ineffective, the remaining provisions stay effective.