General Terms and Conditions

Sven Christian Dudene
Dudene Digital
Parkstrasse 2
63571 Gelnhausen

- hereinafter: Contractor -

Part 1 – General Provisions

1.1 General

1.1.1

The Contractor offers various agency services to the Customer. The specific scope of services is subject to individual agreements between the Contractor and the Customer.

1.1.2

The Contractor does not conclude contracts with consumers or private individuals (B2B only).

1.1.3

The Contractor is entitled to assign the necessary services to subcontractors in its own name and on its own account, who in turn may also use subcontractors. Unless otherwise agreed, the Contractor remains the sole contractual partner of the Customer. The use of subcontractors shall not take place if it is apparent to the Contractor that their use is contrary to the legitimate interests of the Customer.

1.1.4

Insofar as, in addition to these GTC, further contractual documents in text or written form have become part of the contract, the provisions of these further contractual documents shall take precedence over these GTC in the event of a contradiction.

1.1.5

General terms and conditions to the contrary used by the Customer shall not be recognized by the Contractor – subject to explicit consent.

1.2 Cooperation Duties of the Customer

1.2.1

If the Customer provides the Contractor with texts, images, or other content fulfilling the commissioned services, the Customer must ensure that this content does not violate the rights of third parties (e.g., copyright, trademark law, etc.) or other legal norms. It is pointed out in this context that the Contractor is not legally entitled to provide legal advice to the Customer. Above all, the Contractor is not obliged and legally not in a position to check the business model of the Customer and/or works created or acquired by the Customer themselves (layouts, graphics, texts, etc.) for their compatibility with applicable law. In particular, the Contractor will not conduct any brand research or other collision checks in relation to intellectual property rights for the works provided by the Customer. Insofar as the Customer issues specific instructions regarding the work to be produced, the Customer is liable for this.

1.2.2

The Customer is obliged to communicate completely and correctly the information, data, works (e.g. data for the legal notice, graphics, logos, etc.) and access needed to fulfill the contract. Furthermore, they must ensure that the instructions they provide comply with applicable law.

1.2.3

Subject to deviating individual agreements, the Customer is responsible for procuring the material for the provision of the agency services (e.g. graphics, videos) themselves and shall make them available to the Contractor in a timely manner. If the Customer fails to provide them or to provide further specifications, the Contractor may, at their own discretion and subject to copyright labeling requirements, use imagery from common providers (e.g. stock photo services) or provide appropriate placeholders.

1.2.4

If a data processing agreement according to Art. 28 GDPR is required for individual components of the contract, both contracting parties undertake to securely conclude such an agreement – which is to be provided by the Contractor – before the execution of the service begins.

1.2.5

The Contractor bears no responsibility towards the Customer for delays in project implementation arising out of delayed cooperation or delayed necessary inputs from the Customer; regulations under the heading "Liability/Indemnity" remain unaffected by this provision.

1.2.6

If the Customer does not comply with their obligations to cooperate from this section, the Contractor may invoice the Customer for the resulting additional effort (e.g. costs for stock photos and the time spent searching for them).

1.3 Use of Artificial Intelligence (AI)

1.3.1

In the course of service provision, the Contractor is entitled to use Artificial Intelligence technologies (AI tools) to create content (e.g. text, images, audio, or video). Unless otherwise agreed, all AI-generated content will be reviewed by a natural person after creation and adjusted if necessary. AI tools will not be used if it is apparent to the Contractor that their use conflicts with the legitimate interests of the Customer. If the Customer wishes that AI technologies are not used for specific projects or parts thereof, they must actively communicate this to the Contractor in text form.

1.3.2

The Contractor assures that content wholly or partially created with AI does not violate the rights of third parties. If exclusive usage rights are to be transferred for content wholly or partially created using AI, the Contractor will ensure that such transfer of usage rights is possible (e.g. by modifying AI-generated works so they attain the threshold of originality required for copyright protection).

1.3.3

Separate labeling of AI-generated content is only owed if and insofar as the labeling of the content is legally required or provided it is foreseeable at the time of service provision that a labeling obligation will be legally required in the foreseeable future (e.g. due to provisions in the AI Act). The same applies to notifications stating that certain work results have been created using artificial intelligence.

Part 2 – Online Presences and Technology

2.1 Website Creation (agile)

2.1.1

Unless deviating individual agreements have been made, the creation of new websites, web components, or expansion of existing ones (hereinafter "Website Creation") takes place on the basis of agile methods. The remaining provisions of these GTC remain unaffected.

2.1.2

The subject of website creation contracts between the Contractor and Customer generally involves the development of new websites or expansion of existing ones (e.g. integration of new interfaces or programming digital online applications) in adherence to the technical and/or creative guidelines of the Customer. Conclusion of website creation contracts between parties acts as contracts for work according to §§ 631 ff. of the German Civil Code (BGB).

2.1.3

The particular services agreed upon result from the contract individually concluded between Contractor and Customer. In order to do this, the Customer must first submit a request to the Contractor with the most precise possible description of desired website content (design content such as images, layouts, logos, fonts, etc., must be determined and provided by the Customer, pending other arrangements). This request serves as an invitation to submit a quote by the Contractor. Upon receipt, the Contractor shall review the conceptual ideas described, acting in good faith out of their best knowledge, for completeness, suitability (excepting legal suitability, particularly regarding the rights of third parties), clarity, feasibility, and consistency, and generate a quote. Only through the Customer's acceptance of this quote does a contract between Contractor and Customer come into effect.

2.1.4

The Customer may introduce requirements at any time as long as they are covered by the originally defined scope of services. Such adjustments become part of the original agreement when both contract parties agree in text form (e.g. via e-mail). Otherwise, the Contractor is only obliged to produce the functions/items listed in the contract or provide the agreed service. Exceeding services must be separately documented and remunerated.

2.1.5

As soon as the website is completed, the Contractor shall ask the Customer to formally accept the website.

2.1.6

A prerequisite for the Contractor's operations is that all data to be provided by the Customer and necessary for the execution of the project (e.g. texts, templates, graphics, fonts) and/or system environments are made available to the Contractor timely and in suitable form. The Contractor bears no responsibility towards the Customer for late project implementation delays caused by the Customer's late necessary participative inputs.

2.1.7

The reviewing or procurement of rights, the acquisition and/or integration of plugins and/or tools (e.g. analytics) or certificates (e.g. SSL/TLS) are only owed by the Contractor if explicitly agreed upon in an individual contract. Claims regarding the surrender of graphics, source codes, documentation (including development records), manuals, or other supplementary documentation do not exist unless explicitly negotiated.

2.1.8

Unless stated otherwise, the websites created will be optimized for the browsers Chrome, Safari, Firefox, and Edge in their current version (always the latest two versions of the browser). Search Engine Optimization (SEO) is only owed if expressly agreed upon.

2.1.9

Post-completion of websites and/or singular portions thereof, the Contractor may offer maintenance and care services related to the websites. Nonetheless, the Contractor isn't obligated to make such an offer, nor does the Customer have to accept extended service arrangements from the Contractor. Agreed terms act solely under individual contracts. If no extra maintenance and care services are arranged between the parties, subsequent to delivery, the Customer assumes complete responsibility for the websites' technical upkeep and modernity. The Contractor is exempt from liability against the Customer regarding security vulnerabilities exploited for unlawful acts utilizing outdated third-party software (Hacking).

2.2 Website Creation (Requirement Specification and Functional Specification)

2.2.1

Should website creation procedures be established through requirement specifications and subsequent functional specifications regarding development or modification parameters, the contractual processing takes place according to stipulations in this section.

2.2.2

The subject of website creation contracts basically entails building new websites or expanding functioning ones meeting exact technical and/or creative specifications defined by the Customer. Such contracts between parties enact work contracts pursuant to §§ 631 ff. of BGB.

2.2.3

Crucial for assigning bounds to the Contractor’s services owed are individual agreements formed between parties on one side, and heavily detailed requirement specifications documented by the Customer along with subsequent functional drafts acting parallel to them, on the other. Acting in good faith out of their best knowledge, the Contractor shall look into Customer ideas depicted inside the requirement specifications focusing primarily on comprehensiveness, eligibility (exceptionally discounting legal elements – specifically surrounding non-involvement concerning third-party laws), precision, implementation possibilities, and logical congruence. Upon detecting directives that are incompatible with designing websites inside the specifications, the Contractor promises to quickly bring them to light with the Customer side while putting forward applicable alternatives. The Customer must evaluate potential solutions related to specifications issued by the Contractor within a reasonable timeframe via written or text forms and conclusively certify the updated specifications to establish contract boundaries.

2.2.4

Drawing from these specifications, the Contractor fabricates a functional specification detailing specifically the technical and/or artistic integration procedures matching defined parameters. Upon completion, the functional specification returns to the Customer to secure consent framing. The Customer preserves authorization to reject the document citing revision or adjustment preferences. Honoring this, the Contractor must propose fundamentally two alternative versions integrating said preferences. If the Customer resolutely rejects the Contractor’s conclusive draft, either participant possesses authority to terminate said contractual partnership extraordinarily or rescind agreements – if legally applicable. Compensation targeting honorariums or expenditures originating alongside requirement and functional specifications accumulated by the Contractor must be appropriately satisfied by the Customer in such circumstances.

2.2.5

Consent established targeting functional specifications by the Customer solidifies integrated features as conclusively agreed attributes bonding the parties together. Any divergence from elements structured within accepted functional specifications mandates expressly written bespoke individual amendments agreed between participants. The Contractor undertakes no services that overshoot constraints inside accepted specifications. Likewise, the Contractor inherently disbands sub-par provisions failing agreed outlines inside the functional document. Ensuing successful consent, the Contractor devises and codes the domains adhering closely across previously accepted norms.

2.2.6

Alongside functional specifications, the Contractor yields a timeline schedule outlining production paths. Information encapsulated internally constitutes contract frameworks conditioned on sudden objections presented rapidly out from the Customer's side. Committing fully to production, the Contractor endeavors distributing the final product completely or partially hitting scheduled dates mapped on accessible platforms and/or transferring them via email and/or initiating an uploaded format accessing distinct digital servers outlined by the Customer initially. Final delivery procedures rely heavily on individual guidelines shaped mutually.

2.2.7

2.2.8

As soon as the website is completed, the Contractor shall ask the Customer to formally accept the website. Before acceptance, a testing phase could be organized if requested. While maneuvering testing bounds or before acceptance, any defects identified must be formally communicated to the Contractor via written or text channels. Acting properly, the Contractor aims to scientifically neutralize anomalies. Workaround setups are legitimately provided acting temporarily before final closures.

2.2.9

2.2.10

2.2.11

2.3 Maintenance and Support of Websites / Shops

2.3.1

Following the completion of the websites and/or specific segments thereof, the Contractor may extend an offer for maintenance and support services associated with the websites (hereafter "Maintenance Contracts"). The Contractor is also qualified to offer maintenance tasks tied to third-party domains. However, the Contractor remains free from any obligation demanding the provision of such offers, neither does the Customer carry a mandate obliging them to utilize the Contractor’s extended service capacities. Respective frameworks exist purely operating under individual agreements.

2.3.2

The focus encapsulated in Maintenance Contracts involves resolving functional anomalies parallel with initiating issue-driven website updates calibrating current versions attached to primary web browsers. Further provisions like regular systematic maintenance can consequently be incorporated via customized agreements addressing individual dimensions.

2.3.3

The Contractor maintains no liability dealing with functional blockages and irregularities traced directly backward to unsanctioned modifications driven heavily by independent actions connected with the Customer or rooted deep in auxiliary errors residing completely external to defined boundaries covering Contractor obligations; stipulations housed underneath the heading "Liability/Indemnity" simultaneously maintain unaffected validity.

2.3.4

In absence of contradicting stipulations, maintenance integrates purely technological updates omitting any modifications impacting website textual/graphical materials. Outstanding exceptions excluded, the Contractor fundamentally steers clear of obligations connecting to updating texts covering the legal imprint or the data privacy declarations naturally tied alongside it.

2.4 Web Hosting

2.4.1

The Contractor also offers the Customer hosting provisions for websites or digital storefronts originally designed directly by the Contractor themselves. To complete necessary deliverables, the Contractor will rely significantly upon implementing servers attached to third-party institutions. Details encapsulating implemented servers alongside involved third-party partners will be revealed completely to the Customer preliminary to any contract ratifications taking active form. The precise dimension regarding service scopes (domain coordination, capacity allocation, email networking, digital certifications, etc.) continues resting inside boundaries surrounding customized individual agreements drawn directly reflecting discussions separating the involved parties.

2.4.2

Yearly baseline averages covering accessibility associated directly regarding servers employed primarily by the Contractor to secure hosting objectives maintain consistent reliability fixed continuously around ninety-nine percent (99%). Explicitly removed tracing out from this computation are individual intervals identifying specifically periods demonstrating server non-reachability provoked heavily by unforeseeable dynamics positioned entirely beyond operational control associated with the Contractor (Force majeure factors, foreign actions initiated autonomously via third-parties, technological interruptions existing totally segregated connecting external domains far removed linking Contractor jurisdictions, etc.).

2.4.3

The burden addressing routine backups encapsulating resident hosted data rests continually parallel alongside the Customer explicitly. Encountering circumstances leaving the Customer technically unequipped addressing adequate backups naturally transfers implicit responsibilities necessitating the Customer directly contracting professionally equipped third-parties or indeed assigning the Contractor personally assuming matching roles. Accidental incidents sparking data collapse traceable transparently back matching absent consistent localized backups trigger solitary responsibility shouldered completely connecting identical paths bridging specifically linking back solely attaching the Customer.

2.4.4

Materials designated explicitly reflecting insulting, extremist, violence glorifying/trivializing, seditious, right-wing radicalized, discriminatory, anti-constitutional, morally detrimental focusing minors, or generally pornographic identities simultaneously violating established rights guarding third-parties (e.g. copyright boundaries targeting brands simultaneously attached identifying creative works) alongside otherwise recognizable legislative decrees maintaining societal regulations governing morality (drawing notably referencing localized penal or broad regulatory frameworks) combined incorporating malicious codes/software maintain complete classification operating inherently forbidden retaining absolute denial accessing integrated storage parameters systematically distributed. Navigating assumptions implying possibly hosted unapproved substances matching aforementioned standards penetrating integrated boundaries, the Contractor initiates direct intervention strategies reflecting detailed sequential progression:

2.4.4.1

Preliminary inspection protocols initiating sweeping diagnostic evaluation targeting relevant digital substances take priority sequentially addressing swift Contractor action. Tracing potential validation pointing concretely demonstrating substantial possibilities revealing inherently illegitimate contents simultaneously triggers the Contractor asserting sovereign discretionary authority deploying interim provisional suspension protocols limiting access pathways extending further implementing appropriately structured responses neutralizing apparent localized threats culminating potentially forcing conclusive material deletion natively originating locally. Notification procedures demand active Customer participative involvement yielding adequate procedural response deadlines established deliberately providing defensive clarification possibilities structurally.

2.4.4.2

Culminating final evaluative measures triggering decisions determining resulting localized handling mapping precisely connected against illicit content activate seamlessly correlating closely parallel alongside successfully incorporated Customer commentary or following naturally closing expired structural deadline windows omitting delivered statements. Appropriate considerations encompass actions executing structured warnings; infinite access blocks simultaneously coupling absolute irreversible deletion linking affected native materials; provisional suspension limiting global Customer functionality (featuring conditional partial alternatives limiting access fractionally); organized termination covering existing agreements implementing standardized ordinary alongside unpredictable extraordinary formats; engaging formal legal reports navigating regulatory governance structures including civic order units (obligations compelling Contractor involvement signaling imminent catastrophic threat exposing localized severe bodily harm, fundamental livelihood preservation, or overarching generalized public security thresholds organically provoke mandated legal intervention formats activating automatically). Deploying respective intervention strategies necessitates robust diagnostic reflection targeting transparent assessment considering explicit metrics surrounding overarching impact measuring generalized disruption volume identifying cumulative repeated violations affecting broad infrastructure elements hosting auxiliary Customer segments alongside separated third-parties simultaneously acknowledging overall contextual demeanor mapping logical accountability tracking directly evaluating motivation trajectories capturing accurately defining localized intention referencing provided responsive documentation inherently supplied mirroring active Customer involvement.

2.4.4.3

Operational outcomes capturing comprehensive evaluations encapsulating resulting tactical actions require accurate notification protocols linking securely backwards transmitting explicitly reaching the Customer bridging entirely depending fundamentally on nonexistence relating contradictory legal parameters actively prohibiting similar communication channels systematically.

2.4.4.4

Strategic automated investigative audits surveying housed digital materials rest deliberately strictly absent defining continuous proactive continuous Contractor operational frameworks unless strictly modified capturing bespoke separated customized specifications natively organized individually. Consequently, the Contractor deploys active operational interception exclusively correlating directly overlapping visible identification validating aforementioned unauthorized content traversing alternative channels broadcasting equivalent observations originating separately via third-party signaling vectors natively mapping parallel. Acknowledging mirrored perspectives framing instances where the Customer autonomously isolates congruent unauthorized materials, unrestricted contact pathways remain consistently available directly navigating identical trajectories identifying Contractor accessibility utilizing corresponding informational credentials presented systematically natively covering formal imprint references originally supplied natively.

Part 3 – Content Creation and Design

3.1 Copywriting / Text Creation

3.1.1

The Contractor provides varied text resources addressing precise Customer operations (e.g. media press releases, contextual web entries, promotional copywriting templates etc.). The exact contents belonging conceptually surrounding these documents are solidified explicitly functioning under individualized contractual negotiations exclusively.

3.1.2

Reaching scheduled fulfillment encompassing structured document compilation inherently activates subsequent Contractor delivery protocols transmitting materials completely bridging backwards granting Customer verification targeting final operational approval. Functioning under standardized parameters excluding distinct opposing modifications mapped originally, the Customer retains authorizations executing two organized revision loops providing structural modification suggestions internally. Content objections mirroring stylistic arrangements alongside integration targeting completely newly acquired informational data surfacing independently logically vanish sequentially immediately tracking finalization terminating the second formal revision trajectory automatically. Identifying sequential modifications required breaching defined borders inherently demands auxiliary supplementary Customer financial remuneration naturally attaching inherently.

3.1.3

Entrusted managing continuous broadcasting capabilities distributing produced documentation naturally delegates subsequent publication actions suspending dependently targeting finalized conclusive verification confirming explicit Customer approval fundamentally bridging parallel assuming identical operational capacity validating mutual acceptance. Producing press delivery structures similarly demands precise temporal scheduling mapped cooperatively following active approval confirming precise distributional delivery targets aligning perfectly. Executing analogous broadcasting trajectories organized specifically handled exclusively independently controlled directly mapping Customer operations necessitate parallel preliminary approval tracking prior completion identically terminating organically. Occurring instances navigating unapproved publishing executed directly leveraging pure Customer maneuvers legally constitute formal acceptance fundamentally executing parallel simultaneously automatically.

3.1.4

Locating inconsistencies subsequently surfacing tracking sequential active formal approval periods legally constraints Contractor responsibility narrowing significantly corresponding purely overlapping conditions identically formatted underneath "Liability/Indemnity" governance architectures systematically mapping closely.

Part 4 – Miscellaneous Provisions

4.1 Pricing and Remuneration

Financial compensation addressing corresponding distinct Contractor outputs operates uniquely attached incorporating customized individual negotiations structurally aligning seamlessly paralleling formally established initial service propositions effectively framing baseline assumptions locally.

4.2 Acceptance

Executing project configurations demanding explicit outcome validation naturally forces precise Contractor actions demanding structured formal Customer evaluation frameworks triggering formal acceptance protocols natively. The standard acceptance timespan adhering directly toward parameters outlined covering § 640 Paragraph 2 Section 1 BGB assumes a rigid 2-week continuous timeframe counting explicitly beginning directly following initial request delivery unless dynamically unique circumstances necessitate modifying timelines formally, naturally prompting subsequent explicit specific communication delivered tracking specifically toward the Customer. Circumstances manifesting entirely omitting conclusive Customer commentary parallel lacking legitimate defective rejection reporting internally throughout defined sequential boundaries inherently constitute final binding acceptance automatically navigating established standardized frameworks locally.

4.3 Warranty for Defects

Immaterial defects lack substantial validity constructing robust warranty claims locally. Locating tactical channels deploying necessary corrections executing functional adjustments remains securely protected granting sole Contractor authority navigating identical operations continuously. Expiration timelines defining generic claims overlapping associated deficiencies register uniquely maintaining 1-year (one) cycles; preventing overlapping conflicting modifications nullifying shortened timeframes connected directly isolating intentional malice, significant aggressive negligence behaviors explicitly alongside actions triggering critical damages encompassing life, physiological impairment or generalized health degradation physically. Timeframes exclude resetting logic responding reacting structurally resolving deficiencies systematically providing corrective pathways naturally mapped tracking active warranty fulfillment periods directly integrating implicitly. Identical standardized statutory defect warranty provisions conversely remain protected unaltered natively functionally navigating similar environments appropriately locally.

4.4 Grant of Rights, Self-Promotion and Right of Mention

4.4.1

Fulfilling absolute comprehensive payment structures completely satisfying explicit operational parameters essentially guarantees standard operational usage authorizations framing strictly singular non-transferrable rights navigating identical outcomes natively bridging Customer capacities identically tracking precisely closely. Amplified expansive entitlements demand explicit independent individualized customized contractual integration frameworks natively organized separately distinctly simultaneously.

4.4.2

Omitting explicit deviating agreements natively restricts Customer barriers functionally unleashing transparent Contractor privileges utilizing project parameters directly incorporating parallel marketing operations focusing transparent self-promotional frameworks (Portfolio / Reference exhibits) systematically. Incorporating similar advantages distinctly grants unconditional explicit usage authorizations referencing identical mutually beneficial contractual corporate partnerships traversing connected marketing channels signaling identifiable Contractor attribution organically lacking connected Customer counter-claims demanding identical comparative financial remuneration essentially tracking parallel continuously safely independently dynamically locally.

4.4.3

Parallel trajectories naturally afford explicit Contractor capabilities connecting identical identifiable corporate monikers linking hyperlinks systematically securely positioning elements natively located tracking explicitly footer frameworks alongside formal operational imprint constructs framing localized delivered website parameters lacking similarly explicit generalized functional complementary Customer monetization expectations natively navigating exactly tracking precisely closely identically securely dynamically actively.

4.5 Confidentiality

The Contractor will treat all business transactions that come to their knowledge, particularly, but not exclusively, print documents, layouts, storyboards, figures, drawings, tapes, images, videos, DVDs, CD-ROMs, memory cards, passwords, interactive products, and other such documents that contain films and/or audio plays and/or other copyright-protected materials of the Customer or its affiliated companies, as strictly confidential. The Contractor undertakes to impose the confidentiality obligation on all employees and/or third parties (e.g. suppliers, graphic designers, programmers, film producers, recording studios, etc.) who have access to the aforementioned business transactions. The confidentiality obligation applies indefinitely beyond the duration of this contract.

4.6 Liability / Indemnification

4.6.1

The Contractor is fully liable for whatever legal reason in the event of intent or gross negligence, in the event of intentional or negligent injury to life, body, or health, due to a guarantee promise, unless otherwise regulated in this respect, or due to mandatory liability, such as under the Product Liability Act. If the Contractor negligently breaches a material contractual obligation, liability is limited to the typical, foreseeable damage, unless unlimited liability applies in accordance with the preceding sentence. Material contractual obligations are obligations that the contract imposes on the Contractor according to its content to achieve the purpose of the contract, the fulfillment of which makes the proper execution of the contract possible in the first place and on whose compliance the Customer may regularly rely. Otherwise, the Contractor's liability is excluded. The above liability provisions also apply regarding the Contractor's liability for its vicarious agents and legal representatives.

4.6.2

The Customer indemnifies the Contractor against all claims by third parties asserted against the Contractor due to violations by the Customer of these GTC or applicable law.

4.7 Final Provisions

4.7.1

The contracts concluded between the Contractor and the Customers are subject to the substantive law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.

4.7.2

If the Customer is a merchant, a legal entity under public law, or a special fund under public law, or has no general place of jurisdiction in Germany, the parties agree on the Contractor's registered office as the place of jurisdiction for all disputes arising from this contractual relationship; exclusive places of jurisdiction remain unaffected.

4.7.3

The Contractor is entitled to change these GTC for objectively justified reasons (e.g. changes in case law, legal situation, market conditions, or business or corporate strategy) and with a reasonable notice period. Existing customers will be notified of this by e-mail at least two weeks before the change takes effect. If the existing customer does not object within the period set in the notification of change, their consent to the change shall be deemed granted. If they object, the changes will not take effect; in this case, the Contractor is entitled to extraordinarily terminate the contract exactly when the change takes effect. The notification of the intended change to these GTC will indicate the deadline and the consequences of an objection or failure to object.