General Terms and Conditions of Native Creative GmbH
§ 1 General Provisions
(1) The following General Terms and Conditions apply to all contracts for services related to the UX design services of Native Creative GmbH, Belziger Str. 69-71, 10823 Berlin (hereinafter also referred to as "Native Creative"), with its clients (hereinafter "Client"). In their respective version, they also serve as a framework agreement for future contracts with the same client.
(2) These General Terms and Conditions do not apply to contracts with consumers.
(3) Any conflicting terms and conditions of the client shall not apply unless Native Creative has expressly agreed to them in writing. Individual agreements made on a case-by-case basis shall always take precedence.
(4) Agents of Native Creative are not authorized to enter into verbal side agreements.
(5) The place of jurisdiction is Berlin Charlottenburg. Native Creative is also entitled to sue the client at their registered office.
(6) The business relationship between Native Creative and the client is governed by the laws of the Federal Republic of Germany. The application of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods, is excluded.
§ 2 Services provided by Native Creative
Native Creative provides UX design services for apps and websites. The client hereby engages Native Creative to perform these services.
(2) The exact content of the services is derived from the order confirmation and the associated documents.
Section 3 Commissioning
(1) Native Creative remains bound by its proposals for one week, unless otherwise agreed. In individual cases, a longer binding period may be agreed upon.
(2) A contract is concluded upon acceptance in writing or via email.
(3) Native Creative reserves ownership and copyrights to proposals and documents. These may not be passed on, reproduced in part, or made accessible to third parties without express consent.
Section 4 Execution of Orders, Change Requests
(1) Native Creative organizes the services independently, unless otherwise agreed in the order.
(2) The services will be performed to the best of our knowledge and according to the state of the art, with the aim of providing a practical and economical solution.
(3) Requests for changes by the client are only valid upon mutual agreement and a written supplementary agreement. The client may request changes to the content and scope of the services. This does not apply to services already rendered. If the changes are not merely insignificant, Native Creative will determine the resulting time delays and additional costs, and the parties will agree on a corresponding contract adjustment. If the parties cannot reach an agreement, Native Creative is entitled to reject the change request. Native Creative cannot claim additional compensation for service changes for which the client is not responsible. All service changes must be regulated in a written supplementary agreement before execution begins, in which the additional compensation and any changes to the schedule are to be recorded.
Section 5 Deadlines
(1) The deadline for the provision of services is agreed upon individually or specified by Native Creative in the order confirmation. Compliance with the deadline by Native Creative is contingent upon the client fulfilling their contractual obligations. Deadlines stated by Native Creative are non-binding, even if provided in writing. The passing of specific deadlines does not release the client from the obligation to set a reasonable grace period for the performance of the service and to declare that they will refuse the service after the period has expired. This does not apply if Native Creative has expressly designated a deadline or date in writing as a so-called "binding deadline." Native Creative will inform the client of foreseeable delays or an impending failure to meet deadlines as soon as they become apparent.
(2) If Native Creative is unable to meet binding deadlines for reasons beyond its control (force majeure events), Native Creative will inform the client immediately and provide the expected new date. If the service is not available within the new timeframe, Native Creative is entitled to withdraw from the order in whole or in part; Native Creative will immediately refund any consideration already provided by the client.
(3) The occurrence of a delay in performance is determined by statutory provisions. In any case, a formal reminder from the client is required.
(4) If Native Creative is obligated to produce a work (contract for work and services), the client is required to accept the work immediately upon completion, unless acceptance is obviously excluded due to the nature of the work. Native Creative may set a reasonable deadline for the client to provide acceptance. An acceptance report will be prepared and signed by both parties. Acceptance is deemed to have been granted tacitly if the work result itself is used in accordance with the contract even before this point in time without significant objections. Acceptance cannot be refused due to minor defects. Failure by the client to accept the work within a reasonable period set by Native Creative, despite being obligated to do so, is equivalent to acceptance.
Section 6 Cooperation Obligations
(1) In the proposal, the client shall, if applicable, designate a contact person responsible for all questions regarding the execution of this order.
(2) The client agrees to support Native Creative's activities to a reasonable extent and to provide the data, documents, information, and templates essential for the performance of the order in a timely manner. The content and scope of the required cooperation may be specified in the order. The client shall immediately inform Native Creative of any circumstances that arise during the course of execution and that may affect the processing of the order.
(3) To the extent that the client provides Native Creative with information, documents, or data for use within the scope of the order, they warrant that they are authorized to provide and use such materials. The client shall indemnify, hold harmless, and defend Native Creative at their own expense against all third-party claims or liabilities in this regard.
(4) The client must inform Native Creative within a reasonable period, generally no more than five business days, whether they accept or reject a proposal submitted by Native Creative for the design and execution of an order.
Section 7 Ownership and Usage Rights
(1) The work remains the property of Native Creative until full payment has been made. Upon receipt of the agreed remuneration, ownership and usage rights are transferred in full to the client.
(2) Upon full payment, Native Creative grants the client a non-exclusive, worldwide, and perpetual right to use the created works and services. This includes, in particular, the right to reproduce, distribute, exhibit, publicly perform, as well as to edit and modify.
(3) The client is entitled to pass on or transfer the acquired usage rights to third parties, provided that they do not use the works in a manner that violates applicable law, public order, or morality.
(4) Native Creative reserves the right to use the work created during the project as a reference for self-promotional purposes, unless the client objects to this in writing prior to the start of the collaboration.
§ 8 Remuneration
(1) For the agreed services, Native Creative shall receive a flat-rate fee, potentially including a profit-sharing component, or a fee based on time spent (e.g., hourly or daily rates) according to the terms specified in the order confirmation.
(2) Unless otherwise agreed in individual cases, e.g., through corresponding milestones, flat-rate fees are due and payable as follows:
50% of the total fee as a prepayment immediately, at the latest 14 days after commissioning,
50% of the total fee at the latest 14 days after the goals defined by the client have been achieved or upon completion of the order.
(3) Otherwise, invoices from Native Creative are due and payable in advance within 14 days of receipt of the invoice, without deductions.
(4) Invoices may be sent via email. In the event of late payment, statutory regulations apply.
(5) All prices are net plus 19% VAT, which Native Creative will show separately on its invoices.
§ 9 Liability
(1) In cases of intent or gross negligence, the liability of Native Creative shall be governed by statutory provisions. Otherwise, the liability of Native Creative is limited to cases of simple negligence involving the breach of essential obligations (obligations whose breach jeopardizes the achievement of the contract's purpose) as well as the breach of cardinal obligations (obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the client regularly relies); however, in each case, liability is limited to foreseeable, contract-typical damages and, in particular, does not include loss of profit. Native Creative is not liable for the simple negligent breach of obligations other than those mentioned above.
(2) The liability limitations in the preceding paragraph do not apply to injury to life, body, or health, to defects following the assumption of a guarantee for the quality of the product, or to defects concealed with intent to deceive. Liability under the Product Liability Act remains unaffected.
(3) If the liability of Native Creative is excluded or limited, this also applies to the personal liability of Native Creative's employees, representatives, and agents.
§ 10 Warranty
(1) Native Creative is entitled and obligated, regardless of fault, to rectify any inaccuracies or defects in its services that become known. It is obligated to notify the client of this without delay.
(2) Native Creative will perform its duties for each order to the best of its knowledge and belief. However, regarding the factual accuracy, completeness, and truthfulness of its services, it relies on the cooperation of the client in accordance with § 6 (2).
§ 11 Granting of Rights by the Client
(1) The client is solely responsible for ensuring that they possess all rights to the images, logos, documents, etc., provided and that no third-party rights are infringed upon. By submitting documents, images, logos, etc., each client grants Native Creative an irrevocable, royalty-free, worldwide, and perpetual right to use and exploit the provided content for the purpose of fulfilling the contract.
(2) Unless not at fault, the client is obligated to indemnify, defend, and hold Native Creative harmless at their own expense from and against all third-party claims, lawsuits, or proceedings brought against Native Creative or its legal representatives or agents, as well as from all associated liabilities, damages, settlements, penalties, fines, costs, or expenses (including, but not limited to, reasonable attorney and other legal fees) incurred by Native Creative or its legal representatives or agents arising out of or in connection with the client's breach of these Terms and Conditions or applicable laws, regulations, or requirements. In such an event, Native Creative shall notify the client in writing of such claims, lawsuits, or proceedings. The client shall participate in the defense against all such claims to the fullest extent possible.
§ 12 Protection of Intellectual Property, Usage Rights
(1) The copyrights to the services created by Native Creative and its employees and engaged third parties remain with Native Creative.
(2) They may be used by the Client during and after the termination of the contractual relationship exclusively for purposes covered by the respective order. The Client is not entitled to reproduce and/or distribute the services without the express consent of Native Creative. Under no circumstances shall unauthorized reproduction/distribution of the service result in liability on the part of Native Creative towards third parties, for example regarding the accuracy of the service.
(3) Any breach of the above provisions by the Client entitles Native Creative, in accordance with legal provisions, to terminate the contract immediately and prematurely and to assert other legal claims, in particular for injunctive relief and/or damages.
§ 13 Confidentiality and Data Protection
(1) "Confidential Information" refers to all information and documents regarding the business transactions of the other party that come to the attention of the respective party, in particular, but not exclusively, print materials, numerical data, drawings, images, data carriers, and other documents containing copyright-protected materials. Both parties undertake to maintain confidentiality regarding Confidential Information concerning the other party and to use it only for the execution of the order and the purpose pursued thereby. The confidentiality obligation applies indefinitely beyond the duration of the order.
(2) Both parties undertake to impose the confidentiality obligation on all employees and/or third parties (e.g., programmers, graphic designers, etc.) who have access to the aforementioned business transactions. This obligation also continues after the completion of the order.
(3) The confidentiality obligation under paragraph 1 does not apply to information that:
a) was already known to the other party at the time of commissioning,
b) was already published at the time of disclosure without this resulting from a breach of confidentiality by the other party,
c) the other party has expressly authorized for disclosure in writing,
d) the other party has lawfully received from other sources without restrictions regarding confidentiality, provided that the disclosure and utilization of this Confidential Information does not violate contractual agreements, legal provisions, or official orders,
e) the other party has developed itself without access to the Confidential Information,
f) must be disclosed due to legal obligations to provide information, notify, and/or publish, or due to an official order. To the extent permissible, the party obligated to do so will inform the other party as early as possible and provide the best possible support in challenging the disclosure requirement.
(4) The Client agrees that the content of orders and the services provided within the scope of these orders may be stored and processed electronically by Native Creative in compliance with data protection regulations. The parties undertake not to forward any electronically stored or other data to third parties, unless they are legally obliged to do so. The collection, processing, and use of personal data by Native Creative shall take place in compliance with applicable data protection regulations.
As of: March 2025