1. General:
These General Terms and Conditions apply exclusively to the business relationship between the advertising and internet agency Hobby Horse GmbH (hereinafter referred to as “Hobby Horse”) and clients for all offers and services provided by the advertising and/or internet agency “Hobby Horse” in their current version at the time of order placement. Clients can access and print or save these terms and conditions at any time at the web address www.hob-by-horse.de using their internet browser.
The subject of the following General Terms and Conditions (GTC) is the provision of services and/or works by the advertising and internet agency. The specific nature of the services and works is determined by the agency’s developed concept, offer, action proposals, or individual orders.
Deviating conditions of the client are not recognized, unless expressly agreed to in writing by “Hobby Horse.” This also applies if the client’s terms and conditions have not been expressly objected to.
Hobby Horse” reserves the right to subsequently amend these general terms and conditions and additional special terms and conditions. In such a case, “Hobby Horse” will inform the client of the modified conditions and highlight the changes distinctly. If the client does not agree to these changes, the client may object within one month after receiving the notification of the changes. If no objection is made during this period, the changes are deemed approved, provided the client is a merchant within the meaning of the German Commercial Code (HGB). “Hobby Horse” will expressly draw the client’s attention to the right to object, the significance of the client’s behavior, and the resulting legal consequences in the notification of changes, unless the client is not a merchant. the German Commercial Code (HGB)
These terms and conditions are an essential part of every concluded contract, unless otherwise agreed upon in detail. They also apply to future business relationships with the client, without the need for their explicit re-inclusion.
2. Conclusion of Contract.
The offers from “Hob by Horse” are non-binding.
A contract is only formed when the contract is concluded in writing, the client’s order is confirmed in writing by “Hob by Horse,” or “Hob by Horse” has commenced execution.
Pre-services provided by “Hob by Horse” within an offer at the client’s request may be invoiced if a contract is not concluded.
3. Presentation.
The development of conceptual and design proposals by “Hob by Horse,” as well as their presentation, occurs—unless otherwise agreed upon in contracts—upon payment of a separate presentation fee.
Any, even partial, use of the works and services (presentations) presented or handed over to the potential client by “Hob by Horse” with the aim of concluding a contract, regardless of whether they are protected by copyright, requires the prior consent of “Hob by Horse.” This reservation of consent also applies to the use in modified or edited form and the exploitation of the ideas underlying the works and services of “Hob by Horse,” provided that these ideas have not been reflected in previous advertising materials.
The acceptance of a presentation fee does not imply consent to the use of the works and services of “Hob by Horse.”
If copyright usage and property rights for the works presented by “Hob by Horse” in the context of presentations are fully paid according to the agreement, the copyright, usage, and property rights transfer in accordance with the details under Point 12.
4. Scope of Services and Execution of Orders
The scope of services for the orders is determined by both the contract and the respective product or service description current at the time of contract conclusion.
Additional and/or subsequent changes require written form.
The drafts/samples sent by “Hob by Horse” become binding once they have been approved by the client.
The designated contact persons named by the client must be authorized, especially with regard to approving budgets, cost estimates, texts, and other coordination processes. Limitations to the authorization must be communicated to “Hob by Horse” in writing in a timely manner.
To the extent that “Hob by Horse” has engaged third parties, such as printers, in the context of the contractual relationship to produce and deliver quantities for the client, “Hob by Horse” is not liable for over-deliveries or under-deliveries within a range of up to 10%.
Templates, files, and other working materials (especially negatives, models, original illustrations, etc.) created or commissioned by “Hob by Horse” to fulfill the performance owed under the contract remain the property of “Hob by Horse.” “Hob by Horse” is neither obligated to release nor to retain them.
5. Loyalty Obligation
The loyalty binding to the client obligates “Hob by Horse” to provide objective advice aligned with the client’s objectives and to make a corresponding selection of third-party companies, for example, for production processes. If the client has not expressly reserved the right to have a say, the selection of third parties is made with consideration for the principle of a balanced relationship between cost-effectiveness and the best possible success in line with the client’s objectives.
6. Non-competition Agreement
“Hob by Horse” undertakes to inform the client about potential conflicts of interest with other clients and, upon request, grants non-competition exclusions for specific product and service areas to the benefit of the client.
In granting a non-competition exclusion, “Hob by Horse” corresponds to the client’s obligation, during the unexpired contract with “Hob by Horse,” not to engage other advertising agencies simultaneously with the consulting, planning, design, and execution of the project specified in the contract within the scope of the contract subject matter.
7. Assignment to Third Parties
“Hob by Horse” is authorized to perform the tasks assigned to it either by itself or by commissioning third parties.
“Hob by Horse” is entitled to place orders for the production of advertising materials, in the creation of which “Hob by Horse” has cooperated in accordance with the contract, in the name of the client, unless the client expressly reserves this right and communicates this information to “Hob by Horse” in writing within a period of two weeks from the conclusion of the contract.
If the client has not given an explicit statement within this two-week period, their silence is considered as granting authority, to the extent that they are a merchant within the meaning of the German Commercial Code (HGB). “Hob by Horse” will explicitly inform the client, who is not a merchant within the meaning of the HGB, of the significance of their behavior and the legal consequences arising from it at the time of contract conclusion.
Orders are placed by “Hob by Horse” in its own name and at its own expense.
If quantity discounts or volume discount scales are utilized, the client is subject to a surcharge in case of non-fulfillment of the discount or scale conditions, which becomes immediately due.
“Hob by Horse” is not liable for defective performance by third parties or advertising carriers. However, in the event of defective performance, “Hob by Horse” commits to assigning its warranty claims against third parties or the advertising carrier to the client, notwithstanding any exclusion of warranty.
8. Delivery and Delivery Deadlines
“Hob by Horse” has fulfilled its delivery obligation as soon as the works and services provided by “Hob by Horse” are dispatched or made live. The risk of transmission, such as damage, loss, or delay, regardless of the medium used for transmission, is borne by the client.
Delivery deadlines and delivery dates are binding only if the client has duly fulfilled any cooperation obligations (e.g., procurement of documents, approvals, provision of information, preparation of performance catalogs/specifications) and the deadlines have been confirmed in writing by “Hob by Horse.”
Templates and drafts provided by “Hob by Horse” are binding in terms of color, image, line, or sound design only when their corresponding feasibility has been confirmed in writing by “Hob by Horse.”
If “Hob by Horse” is in default with its services, an appropriate grace period must first be granted. After the fruitless expiration of the grace period, the client has the right to withdraw from the contract Compensation for damages due to delay can only be claimed up to the amount of the contract value (self-performance excluding advance payment and materials).
The delivery deadline is extended in the event of unforeseen obstacles outside the control of “Hob by Horse” that demonstrably have a significant impact on the delivery of the subject matter. The delivery deadline is extended according to the duration of such measures and obstacles. “Hob by Horse” will promptly inform the client of the occurrence and the resolution of such obstacles.
Legal reviews are only tasks of “Hob by Horse” if explicitly agreed upon.
Deliveries are made at the expense of “Hob by Horse.” However, packaging, freight, postage, insurance, and other shipping costs are not included in this. And it will be invoiced to the client.
If the client defaults on accepting the performance or fails to provide or delays cooperation that is incumbent upon them, “Hob by Horse” can invoice the resulting loss of performance to the client.
9. Payment Terms, Payment Default
Agreed prices are net prices to which the applicable value-added tax is added. Artist social security contributions, customs, or any other subsequent fees that arise will be passed on to the client.
External and ancillary costs, such as the costs for the engagement of photographers, stylists, designers, etc. As well as expenses for telephone, fax, courier, travel expenses, etc., are to be reimbursed separately upon proof, unless expressly agreed otherwise.
In advertising, the valid list prices of the advertising carriers on the day of publication are binding.
The fee for services provided by “Hob by Horse” is to be paid to “Hob by Horse” in full without deductions, such as discounts or rebates, immediately upon invoicing.
The fee is generally to be transferred to the account specified on the business documents of “Hob by Horse.” Alternatively, cash payment is also possible.
The client is in default with payment ten days after invoicing. From this point onwards, “Hob by Horse” levies default interest at a rate of 4 percentage points above the respective valid base interest rate, which can be obtained from the Federal Gazette or the internet. If no consumer is involved in the legal transaction, the interest rate is 8 percentage points above the base interest rate.
In addition to default interest, “Hob by Horse” reserves the right to assert a higher default damage claim.
If the client asserts that the order has not been properly executed, the maturity of the fee, or in the case of agreed installment payments, the maturity of the final installment, occurs only upon rectification of the reported defect.
This is contingent on “Hob by Horse” either acknowledging the defect or, in the event of a dispute, the justification of the complaint being established in the decision concluding the respective proceedings. The client is obligated to reimburse “Hob by Horse” in full for any costs incurred for each unsuccessful or returned direct debit.
If the client has granted a direct debit authorization, they undertake to promptly inform “Hob by Horse” of any changes to their bank details. If the client is a merchant or a legal entity under public law.
The withholding of payments due to any counterclaims not acknowledged by “Hob by Horse” is not permissible, nor is offsetting with such claims.
For projects of prolonged duration, “Hob by Horse” reserves the right to issue partial invoices to delineate the services rendered thus far.
In the case of ongoing contractual relationships, “Hob by Horse” reserves the right to adjust prices, which will be announced with reasonable notice.
For continuous performance relationships, service fees are to be paid proportionally, starting from the day of service provision, for the remaining part of the month. Subsequently, these fees are to be paid monthly in advance by the 3rd working day of each month, where the client is obligated to grant “Hob by Horse” a direct debit authorization upon request. Fees for parts of a calendar month are calculated for each day at 1/30 of the monthly fee. “Hob by Horse” may add a surcharge to the service fees for the following month, which is based on the excess incurred in the previous month (upgrading). Any underconsumption will be offset in the subsequent invoice.
Objections to fee statements from “Hob by Horse” must be raised immediately upon receipt of the invoice, but no later than 2 weeks after the billing or invoice date, without affecting the due date. The omission of timely objections is deemed approval.
In the event of payment default with a significant portion of the invoice amount or the endangerment of “Hob by Horse’s” payment claim, “Hob by Horse” is entitled to declare all claims due immediately if, after the conclusion of the contract, it becomes apparent that a claim to the consideration is jeopardized due to the other party’s lack of performance according to § 321 of the German Civil Code (BGB).
10. Retention of Title
“Hob by Horse” reserves ownership of the delivered goods until full payment is received.
In the event of the purchaser’s breach of contract, especially in the case of payment default, “Hob by Horse” is entitled to reclaim the goods after issuing a warning, and the purchaser is obliged to surrender them.
11. Cancellation Costs, Termination of the Contract
If the purchaser unjustifiably withdraws from a given order, “Hob by Horse” can, without prejudice to the possibility of claiming a higher actual damage, demand 10% of the sales price for the costs incurred through the processing of the order and for lost profit. The purchaser reserves the right to provide evidence of lesser damage.
In the case of continuous contractual relationships without a minimum term, both contracting parties can terminate the contractual relationship with a notice period of 4 weeks to the end of the quarter.
The right of the contracting parties to terminate the respective contractual relationship prematurely for a significant reason remains unaffected.
“Hob by Horse” can declare extraordinary termination to the purchaser, notwithstanding the legal regulations, if the purchaser is in arrears with the payment of invoice amounts for two due monthly service flat rates or a substantial portion of two monthly invoices.
The termination of the contractual relationship concerning one service does not affect all other contractual relationships between the contracting parties.
12. Usage Rights
“Hob by Horse” transfers to the client, upon settlement of all invoices related to the project, all necessary usage rights for the use of their works and services to the extent agreed upon for the project. In case of doubt, “Hob by Horse” fulfills its obligation by granting non-exclusive usage rights limited to the territory of the Federal Republic of Germany for the duration of the campaign. Any use beyond this, especially modification and alteration, requires a separate agreement. Open files are not delivered to the client. If the client wishes to obtain open files/source codes, a separate offer will be provided after consultation with the client, depending on the nature and scope of the usage rights.
Usage rights for works that have not been fully paid at the termination of the contract or, in the case of commission-based billing, have not been published, remain with “Hob by Horse” unless otherwise agreed upon.
For any documents and data that may need to be provided by the client, the client alone is liable if the use infringes on the rights, especially the copyrights, of third parties. The client is obligated to indemnify “Hob by Horse” from any claims by third parties due to such infringement.
The products are delivered in an executable or printable format.
13. Imprint
“Hob by Horse” may, with the client’s approval, appropriately indicate its company on the contractual products. The client can only refuse approval if they have a legitimate interest in doing so.
In publications, the agency will be mentioned in the usual manner as the author.
14. Warranty
The client, especially if they are a merchant, must inspect the works and services delivered by “Hob by Horse” promptly upon receipt, but in any case within 14 days before further processing, and must promptly report any defects discovered. If the prompt inspection or defect notification is omitted, the client has no claims.
“Hob by Horse” is liable for the absence of guaranteed characteristics within the legal provisions. “Hob by Horse” provides a warranty for errors that eliminate or diminish the value or fitness for ordinary or contractually presupposed use.
The warranty obligation of “Hob by Horse” is limited to rectifying a defect within a reasonable period. The client expressly reserves the right, in the event of rectification failure, to demand a reduction in remuneration or the annulment of the contract. Failure, in the sense mentioned above, occurs especially if rectification is impossible, earnestly and definitively refused by “Hob by Horse,” unreasonably delayed, attempted in vain, or deemed unreasonable for the client due to the accumulation of defects.
The warranty period begins with (partial) acceptance, or as otherwise legally regulated in different cases. The warranty period is three years from the transfer of risk, without prejudice to the statutory commercial obligation to give notice of defects, unless otherwise agreed in writing.
15. Limitation of Liability
If the error is attributable to circumstances for which “Hob by Horse” is responsible, “Hob by Horse” is liable for damages incurred by the client within the scope of legal regulations.
Further claims for damages of any kind against “Hob by Horse,” such as negligence in contract negotiations, positive breach of contract, or tort, are limited to cases of intent or gross negligence. In the event of a breach of essential contractual obligations (cardinal duties), “Hob by Horse” is also liable in the case of slight negligence.
The above limitation of liability does not apply to damages resulting from injury to life, body, or health, in the case of liability under the Product Liability Act, or to the extent that Deutsche Post has exceptionally assumed a guarantee.
In the scope of the Telecommunications Act (TKG), the liability rule of § 44a TKG remains unaffected in any case.
The liability for damages is limited in amount to the typically foreseeable damage.
The above limitations of liability also apply in favor of the employees of “Hob by Horse.”
Claims for damages by the client expire after one year, without prejudice to the provisions of § 202 BGB. This does not apply if “Hob by Horse” has acted with deceit, gross negligence, or intent.
“Hob by Horse” is not liable for the information transmitted through its services, especially not for its completeness, accuracy, or timeliness, nor for its freedom from third-party rights or the legality of the sender’s actions in transmitting the information.
If a damaging event occurs on transmission paths of a third-party carrier, “Hob by Horse” assigns all resulting claims to the client, freeing itself from liability.
Performance and performance delays due to force majeure and events that significantly impede or make it impossible for “Hob by Horse” to provide the service
– including, in particular, strikes, lockouts, official orders, the failure of communication networks and gateways of other operators, disruptions in the services of
third-party carriers, even if they occur at suppliers or subcontractors of “Hob by Horse” or their sub-suppliers, subcontractors, or at operators authorized by “Hob by Horse” for subnode servers – are not the responsibility of “Hob by Horse,” even if binding deadlines and dates have been agreed upon. These circumstances entitle “Hob by Horse” to postpone the performance for the duration of the delay, plus a reasonable lead time if necessary. Otherwise, a case of impossibility exists.
Unless other provisions in these terms and conditions exclude liability, it is limited to EUR 2,500 for damages resulting from the use of services from “Hob by Horse” through the transmission and storage of data and for damages that have arisen because the required storage or transmission of data by “Hob by Horse” has not occurred, unless intent or gross negligence is present.
The availability of “Hob by Horse” servers and data paths up to the handover point to the internet (backbone) is at least 99% on average over the year.
“Hob by Horse” is not liable to customers using the “Hob by Horse” server for commercial purposes, such as operating an internet shop or offering services, for damages of any kind arising directly or indirectly from the temporary failure of the “Hob by Horse” server.
“Hob by Horse” hereby informs the client that limitations or impairments to the services it provides may arise beyond the control of “Hob by Horse.” This includes actions by third parties not acting on behalf of “Hob by Horse,” technically unmanageable conditions of the internet, and force majeure. The hardware, software, or technical infrastructure used by clients (e.g., DSL connection from another provider) may also affect the performance of “Hob by Horse.” If such circumstances affect the availability or functionality of the services provided by “Hob by Horse,” it does not impact the contractual compliance of the services rendered by “Hob by Horse.”
“Hob by Horse” regularly conducts maintenance on its systems for network operation security, maintaining network integrity, service interoperability, and data protection. To this end, it may temporarily suspend or restrict its services, taking into account the concerns of the client, as long as objective reasons justify it. “Hob by Horse” will conduct maintenance work, to the extent possible, during periods of low usage. Should longer temporary service interruptions or restrictions be necessary, “Hob by Horse” will inform the client in advance about the nature, extent, and duration of the impairment, as far as objectively possible under the circumstances, and if such notification does not delay the elimination of already occurred interruptions.
“Hob by Horse” may modify its services if it is reasonable for the client, taking into account the client’s interests.
16. Offset, Reduction, and Retention Rights, Refund
The client, who is a merchant or a legal entity under public law, can only set off against claims by “Hob by Horse” with undisputed or legally established claims. The client is entitled to assert a right of retention only for counterclaims arising from this contract.
“Hob by Horse” has a right of retention over all data, templates, manuscripts, materials, and other items already provided by the client until all due claims from the business relationship are fully satisfied.
If a significant impediment lasts for more than two weeks, the client is entitled to reduce the monthly fees from the onset of the impediment until the next termination date. A significant impediment exists when:
a) The client can no longer access the infrastructure of “Hob by Horse,” and as a result, is unable to use the services listed in the order confirmation.
b) The overall use of these services is significantly impeded, or the use of individual services listed in the order confirmation becomes impossible.
Or
c) Comparable restrictions exist.
In the event of service outages due to disruptions beyond the responsibility of “Hob by Horse,” no refunds of fees will be provided. Furthermore, downtime will only be reimbursed if “Hob by Horse” or one of its agents or assistants has caused the error at least negligently, and the downtime extends for more than one working day. “Hob by Horse” promptly informs the client of the unavailability of the service and promptly reimburses the corresponding consideration.
If the client claims that billed services were not caused by him or third parties for whom he is responsible, he must provide evidence for this.
17. Confidentiality, Non-Disclosure, Data Protection
The client is hereby informed, in accordance with § 33 para. 1 of the Federal Data Protection Act and § 4 of the Teleservices Data Protection Act, that “Hob by Horse” processes its company and address (identity) in machine-readable form and, for tasks arising from the contract, processes information in a machine-readable manner.
“Hob by Horse” undertakes to keep confidential all information and documents accessible to it in connection with the conclusion of the contract, which are designated as confidential or are clearly recognizable as trade or business secrets of the client based on other circumstances, and not to record, disclose, or exploit them unless required to achieve the purpose of the contract.
“Hob by Horse” has ensured, through suitable contractual agreements with its employees and agents, that they also refrain from any unauthorized use, disclosure, or recording of such trade and business secrets.
Similar obligations apply to the client regarding trade and business secrets of “Hob by Horse.” This particularly applies to ideas and concepts made known during the development phase/collaboration.
The client agrees that personal data (inventory data) and other information related to his usage behavior (connection data), such as the timing, number, and duration of connections, access passwords, uploads, and downloads, will be stored by “Hob by Horse” during the term of the contract to the extent necessary to fulfill the contract purpose. By collecting and storing this data, the client gives his consent. “Hob by Horse” processes and uses the collected inventory data for advising its clients, self-promotion, market research for its own purposes, and for the needs-based design of its services. The client can object to such use of his data. “Hob by Horse” will not disclose this data to third parties without his consent. This only applies insofar as the data is already publicly accessible or “Hob by Horse” is legally obligated to disclose such data to third parties, particularly law enforcement authorities, or to the extent that internationally recognized technical standards provide for this, and the client does not object.
18. Password
If the client receives an individual “password” for access to the server, he assures, in his own interest, to treat the password confidentially. The client manages passwords and other access data carefully and keeps them confidential. He is obligated to pay for services that third parties use or order using his access data and passwords, to the extent that he is responsible for it.
19. E-Mails
Hob by Horse” reserves the right to limit the size of incoming and outgoing messages for emails and voicemails, to the extent that it is reasonable for the clients.
“Hob by Horse” is authorized to delete received email messages on provided accounts: a) after they have been retrieved by the clients b) after they have been forwarded as per client instructions c) after they have been stored for 60 days
However, “Hob by Horse” is not obligated to carry out the deletion. The client is responsible for ensuring, through timely deletion, that their storage does not reach the capacity limit, resulting in the refusal of additional electronic messages.
20. Server terms of use
The client is responsible for ensuring that their domain(s) and content do not violate legal regulations or the rights of third parties. “Hob by Horse” points out that, if applicable, especially for international domains, other national legal systems must be considered.
The client undertakes not to offer domains or content for retrieval that are of extremist (especially right-wing extremist) nature or include pornographic or commercially erotic offers. This applies even if such content is made accessible through hyperlinks or other connections set by the client on third-party pages. The sending of spam emails is prohibited. This includes, in particular, the sending of unauthorized, unsolicited advertising to third parties. This includes, in particular, the sending of unauthorized, unsolicited advertising to third parties. When sending emails, it is also prohibited to provide false sender data or obscure the identity of the sender in any other way. The client is obligated to clearly indicate the commercial nature of such communication through appropriate email design.
The client ensures not to exceed quantitatively limited inclusive services unless such an exceeding is contractually agreed upon. If “Hob by Horse” determines that the traffic volume of a client with a web hosting package exceeds the specified limit for the respective contractual relationship in a month by more than 10 percent, it will inform the client accordingly. Subsequently, “Hob by Horse” may offer the client to enter into the next higher contractual relationship (e.g., a higher-tier web hosting package) with a correspondingly higher traffic volume. If an offer to switch to the next higher contractual relationship is declined by the client, “Hob by Horse” may terminate the contractual relationship with a notice period of two weeks.
21. Special conditions for the rental of servers and related services.
nsofar as “Hob by Horse” provides software to the client, “Hob by Horse” is not obligated to provide new versions, especially updates, releases, or patches, unless otherwise agreed.
The hardware necessary for the use of the contracted services is provided by the client and is not part of the contract. If adjustments to the hardware are required after contract conclusion, these are the responsibility of the client.
22. Place of performance and legal venue
For all claims and legal disputes arising from the contractual relationship is Osnabrück, if the client is a full merchant or a legal entity under public law or a special fund under public law. The legal venue also applies to persons other than those mentioned above, if the client does not have a general legal venue in Germany, immediately after contract conclusion moves his residence and/or business location from Germany, or his residence and/or business location or habitual residence is not known at the time of filing the lawsuit.
German law exclusively applies, even if the client has its registered office abroad.
23. Others
Miscellaneous provisions, amendments, and additions to orders require written form. This also applies to the modification of this written form clause.
Oral collateral agreements are not legally binding.
If a provision is or becomes invalid, the validity of the other provisions remains unaffected.
The parties are obligated to replace invalid or missing provisions with an effective provision that comes closest to the economic sense of the ineffective provision.
Emails are considered delivered when they have been accepted by the recipient’s mail server. Encryption or signature of messages and data is only carried out upon explicit written agreement.
The transfer of rights and obligations from this contract is only permitted to the client with the written consent of “Hob by Horse”.
In the scope of the Telecommunications Customer Protection Regulation, its potentially mandatory law takes precedence over conflicting provisions of these regulations. The Product Liability Act remains unaffected, as do manufacturer warranties.
“Hob by Horse” generally acts based on its Terms and Conditions. These conditions are deemed accepted with the initial access to the network of “Hob by Horse” or the use of “Hob by Horse” services.
“Hob by Horse” is entitled to include META-information in the pages it creates and/or modifies, which particularly concern copyright and trademarks in a broader sense, as well as copyright and related rights. In doubt, the contracting parties do not consider such information as editorial processing of the documents. The inclusion of this META-information does not imply assuming editorial responsibility. If “Hob by Horse” is or becomes legally obligated to provide information openly on internet pages or as META-data, “Hob by Horse” is, at its reasonable discretion, authorized to deposit this information even without the express consent of the client, as long as it is known to “Hob by Horse,”
or, until the client lawfully deposits the information, take the internet pages offline.
