General Terms and Conditions of VINLU AGENCY
VINLU AGENCY is owned by Retayne LLC
Retayne LLC
5830 E 2nd St, Ste 7000 #16169, Casper, Wyoming 82609 Us
The following General Terms and Conditions (hereinafter referred to as "GTC") are intended to provide the basis for trusting and practical cooperation between Retayne LLC 5830 E 2nd St, Ste 7000 #16169, Casper, Wyoming 82609 Us (hereinafter referred to as "Agency") and its clients (hereinafter referred to as "Client"). The business area of the Agency is aimed at companies and includes agency services, in particular consulting, development in the field of marketing (newsletter marketing, e-mail automation), strategic consulting, conception, design, creation, development, and implementation.
Status: September 24th, 2024
Table of contents
Part 1
Scope, Definitions, and Basis of the Agreement
Part 2
Development, agency, maintenance, and consulting services
Part 3
Warranty and liability
Part 4
Remuneration and billing
Part 5
Term of Contract and Termination
Part 6
Data protection, confidentiality, amendments to the GTC, and final provisions
Part 1 – Scope, definitions, and basis of the Contract
1. Scope of application
1.1 These General Terms and Conditions (hereinafter referred to as "GTC") shall form an integral part of the contracts concluded between the Agency and the Client, together with follow-up orders of the same type, which are provided within the framework of a continuing and intended business relationship, even if the GTC is not expressly agreed concerning a specific service.
1.2 The GTC shall apply in the version valid at the time of the conclusion of the contract.
1.3 Individual agreements of the contracting parties that deviate from these GTCs shall take precedence over these GTCs if they have been agreed upon in writing. This also applies to the cancellation of the written form.
1.4 Service descriptions, price lists, tariffs, technical specifications, legal and other special notices, in each case if provided, are part of the contract and take precedence over these GTC.
1.5 Special provisions within the scope of these GTCs shall have priority if they contradict the general provisions of these GTCs.
1.6 Deviating terms and conditions of the Client shall apply only if the Agency has expressly agreed to them in writing. Failure to reject the Client's contrary and communicated terms and conditions does not constitute consent.
1.7 The Agency is entitled to agree on the validity of additional conditions for additional and separate services. The additional conditions shall be made recognizable to the Client. If the additional conditions contradict these GTCs, the additional conditions shall take precedence.
2. Definitions
2.1 Software – "Software" means executable programs and the associated functions, data, and design elements. The software includes, but is not limited to, application programs, applications, and websites.
2.2 Continuing Obligation Contracts – These are contracts concluded for a specific or indefinite term, e.g., care and maintenance contracts.
2.3 Contracting Parties – This term covers the Client and the Agency.
2.4 Work – The term “Work” shall mean the result of the Agency's performance, particularly the content or software created within the scope of these GTCs.
2.5. Content – The term “content” used in the following means all content and information, such as photographs, graphics, logos, videos, texts, source codes, advertising material, data, and information about places and persons or links.
2.6 Online presences - The term online presences is understood broadly to mean all online accounts, accounts, profiles, websites, etc., as well as their content, contacts, and data.
3. Offers and power of refusal
3.1 Descriptions and presentations on websites, brochures, etc., do not represent binding offers.
3.2 The offers of the Agency are subject to change. The agency reserves the right to accept or reject an order.
3.3 Contract inquiries (including order and other service inquiries) to the Agency shall only establish a contractual relationship with the Agency upon their acceptance. The Agency reserves the right to reject contract inquiries.
3.4 Offers made by the Agency shall be valid for 14 days, unless otherwise specified.
3.5 The Agency reserves the right, without acknowledging a corresponding obligation, to check, reject, or block even accepted advertising orders – and also individual call-offs within the framework of a contract – if
- their content violates laws and/or official regulations and/or rights of third parties or;
- whose content has been objected to by the local Advertising Council in a complaint procedure or;
- whose publication is unreasonable for the Agency due to the content, origin, or technical form according to uniform, objectively justified principles of the Agency.
3.6 The Client shall be informed accordingly by the Agency in case of rejection or blocking. The Client shall not be entitled to any claims against the Agency arising from such rejection or blocking.
4 Conclusion of contract
4.1 A contract is concluded unless otherwise expressly agreed individually and insofar as the offer is made by a client, by written or e-mail confirmation on the part of the Agency or by execution of the service under the order. If the offer is made by the Agency, the contract shall be concluded by the Client's declaration of acceptance, taking into account these General Terms and Conditions.
4.2 Insofar as advertising agencies place orders, the contract shall, in case of doubt, be concluded with the advertising agency, subject to other written agreements. If an advertiser is to become a client, he must be named and designated as such by the advertising agency. The agency is entitled to demand proof of mandate from the advertising agency.
4.3 Advertising for goods or services of more than one advertiser or other advertisers within an advertising presence (e.g. banner, pop-up advertising, etc.) require an additional written agreement, also concluded by e-mail.
5 Subsequent changes and change requests
5.1 If the Client requests a change to the agreed services during the course of the contract or if the factual situation communicated by the Client changes after the Agency has submitted an offer or after the contract has been concluded, the Agency may prepare an offer for the additional or reduced costs, unless remuneration on a time and material basis has been agreed, or the Client expressly waives a separate offer.
5.2 Until the decision on the acceptance or rejection of the offer by the Client, the Agency shall pause work on the services affected by the offer if the subsequent acceptance of the offer by the Client would result in additional expenses. Agreed delivery periods shall be extended accordingly.
6. Place and time of activity
6.1 The Agency shall be unrestricted as to the time and place of performance of the agreed individual orders.
6.2 The Agency shall have the right to use subcontractors for the fulfilment of this contract, provided that this does not conflict with any contractual obligations, in particular the obligation to provide services directly by the Agency (e.g. due to its professional competence) or the obligation to confidentiality and data protection.
6.3 The employees of the Agency shall not enter into any employment relationship with the Client. The Client shall issue instructions exclusively to the responsible employees named by the Agency with effect for and against the Agency.
7. Deadlines and dates
7.1 Deadlines and dates shall only be deemed binding if the Agency agrees to a deadline or date.
7.2 The Agency shall not be responsible for delays in performance due to force majeure or circumstances within the scope of application of the Client (untimely provision of content, etc.) and shall be entitled to postpone the provision of the affected service by the duration of the hindrance/delay plus a reasonable period of time. In return, the Agency undertakes to notify the Client of any delays in performance due to force majeure.
Part 2 - Development, Agency, Maintenance and Consulting Services
8. Order description
8.1 The services of the Agency shall include consulting, COpywriting, Deisgn, implementation, and other agency services. The concrete specifications of the respective contractual service, scope, application areas, general conditions, functions, documentation, schedule, and timetable shall result from the order description on which the respective service is based.
8.2 The order description shall not be subject to any specifications; it may, for example, also take the form of an offer, an order description, or a specification sheet. The order description shall show a degree of detail sufficient for the respective service as is customary in the industry. The Client shall inform the Agency immediately of any gaps in detail and shall support the Agency in the necessary further detailing to the best of its ability.
8.3 If the order description needs to be revised or its scope is doubtful in some instances, the services to be rendered shall include the tasks customary in the industry that are necessary to fulfill the agreed purpose of the contract.
8.4 Subsequent changes to the order description shall require adequate express confirmation of the respective contractual partner.
8.5 If the contractual services serve to achieve a concrete success expressly agreed in writing (e.g., creation of concrete work, achievement of specific success figures), this shall be deemed a contract for work and services. Otherwise, it shall be a service contract.
8.6 Training of users, documentation, reports, instruction, installation, and maintenance are not an ancillary part of the services of the Agency and must be agreed upon separately.
9. Maintenance and services
9.1 The ongoing maintenance and services do not include consulting and further development. A separate agreement must be concluded for these services. I.e., without an express agreement, no services are included that go beyond the maintenance of the functionality of the item to be maintained (e.g., software or advertising material) and concern, for example, changes to the scope of functions, other areas of application or individual adaptation in terms of appearance or content.
9.2 Adjustments due to technical changes that result in the essential functions or interfaces of the item to be maintained having to be essentially recreated shall also not be included in ongoing maintenance and services. This includes, in particular, changes to the item to be maintained which were not foreseeable at the time of the conclusion of the contract and which were made by the Customer or third parties.
9.3 For work that can be planned, an appropriate date should be found jointly with sufficient advance notice that restricts the availability of the system as little as possible. In principle, the execution of plannable work is coordinated with the client with a lead time of 3 days. Plannable work is work and activities known in advance and are not time-critical. Still, the item to be maintained may only be available to the client to a limited extent or not at all for a certain period of time.
10 Cooperation and Duties to Cooperate
10.1 The contracting parties shall cooperate on a basis of trust and shall inform each other without delay in the event of deviations from the agreed procedure or doubts about the correctness of the other's procedure.
10.2 The Client undertakes to support the Agency in performing its contractual obligations. This shall include, in particular, the timely provision of information and data material insofar as required by the Client's cooperation services.
10.3 If required for the performance of services by the Agency and not to be provided by the Agency, (i) the Client shall make the technical equipment, such as hardware or data transmission lines, ready for operation and shall provide such equipment free of charge to a reasonable extent; (ii) the Client shall provide the access data; (iii) the Client shall support the Agency in test runs and acceptance tests by providing appropriate personnel.
10.4 Cooperation services and provisions of the Customer shall be free of charge for the Agency.
10.5 If the Agency cannot provide the services or can only do so at an additional expense due to a lack of or insufficient cooperation or provision by the Client, the Agency shall be entitled to claim any additional expenses incurred from the Client.
10.6 The contracting parties and their contact persons shall communicate with each other at regular intervals, which shall be determined jointly, about progress and obstacles in the execution of the contract to be able to intervene in the execution of the contract in a guiding manner if necessary.
10.7 If the Client recognizes its information and requirements as incorrect, incomplete, ambiguous, or impracticable, it shall notify the Agency of this and the consequences it recognizes without delay.
10.8 Communication between the Agency and the Client shall be as effective as possible, i.e., fast and error-resistant. In this context, the Principal shall observe any formal communication requirements, provided that these have been communicated to it or are otherwise known to it, are achievable, and their perception is reasonable for the Principal. This includes, in particular, the use of ticketing systems and sufficient description of problems, symptoms, technical faults, etc. If the Client does not observe the formal communication requirements, no rights and obligations of the Client towards the Agency shall be established.
11 Exclusion of legal examination, consultation, and duties to cooperate
11.1 The services of the Agency do not include unless expressly agreed, any legal review or legal advice (e.g., trademark law, copyright law, data protection law, or competition law) as well as the fulfillment of legal information obligations of the Client (e.g., provider identification, data protection declaration, consumer information for distance contracts, review obligations for linking, review obligations for the content of forum discussions, blogs, and chat rooms, obligations to comply with media law regulations, in particular regulations for the protection of children and young people, etc.).
11.2 In the event of justified doubts about the legal admissibility of a measure, the Agency may demand that the Client release it and defer the implementation of the measure until such time.
11.3 If the Agency provides the Client with legal documents (e.g., supplements to the data protection declaration), these are legal samples without any claim to correctness and completeness, which are to be checked individually by the Client.
11.4 The Client shall indemnify the Agency against all claims and damages suffered by the Agency due to legal violations attributable to the Client.
12 Provision of content
12.1 The Client shall be obligated to deliver proper content, in particular content that complies with the Agency's format or technical specifications, in due time before the commencement of its use (e.g., as advertising material, for the purpose of placement, as part of websites, etc.) or at the agreed time. The Client shall bear the costs and the risk of transmission.
12.2 The Customer shall deliver the content free of malicious code and/or other sources of damage. In particular, he shall be obligated to use commercially available protection programs for this purpose, which must always comply with the latest state of the art. If sources of damage of any kind are present and identified in a transmitted file, the Agency shall not make use of this file and shall delete it, insofar as this is necessary to prevent or limit damage, without the Client being able to assert (compensation) claims of any kind in this context. The Agency reserves the right to claim damages from the Client if the Client has suffered damage due to such sources of damage infiltrated by the Client.
12.3 The obligation of the Agency to store provided content ends three months after its last distribution. Data carriers, photos, other materials, and documents of the Client shall be returned to the Client only upon request and at the Client's expense and risk.
13. security and granting of rights of use to the agency
13.1 The Client shall ensure that the content he provided is free of third-party rights and that its publication does not violate applicable law. The content provided also includes such content and its sources that the Client recommends or suggests to the Agency about its performance of tasks.
13.2 The Client warrants in particular that it owns all rights required for the use of the content following the order that it does not violate any rights of third parties (in particular industrial property rights, copyrights, trademark rights, personal rights, etc.) or other statutory provisions. The Customer shall bear sole responsibility for the content and the legal admissibility of the content provided by it or by third parties on its behalf.
13.3 The Client shall otherwise indemnify the Agency against all claims of third parties that arise from them against the Agency in connection with the content of the Client and shall indemnify the Agency against the costs for the necessary legal defense. The Client is obligated to support the Agency in good faith with information and documents in its legal defense against third parties and to inform the Agency in writing of any cease-and-desist declarations or interim injunctions concerning third-party rights on time.
13.4 The Client shall transfer to the Agency all copyrights, ancillary copyrights, trademark and labeling rights, and other rights required for the contractual use of the content in online media of all kinds, including the Internet, in particular the right to reproduce, distribute, transmit, broadcast, edit, make available to the public, place in a database and make available for retrieval, extract and retrieve from a database, in terms of time and content to the extent necessary for the execution of the order.
14. granting of rights of use to the client
14.1 The Customer shall be granted an exclusive, temporally and spatially unrestricted right of use and exploitation limited to the contractual purposes for works which are provided individually and expressly for the Customer (e.g., individual graphics or program routines), which shall, in particular, include reproduction, distribution and making available to the public. The resale and further distribution of the Work by the Client shall be excluded unless this has been expressly agreed or results from the nature of the order.
14.2 In the case of Works that are based on, modified, extended, or adapt other Works (e.g., in the case of individual adaptation of templates or software modules), any exclusive rights of the Client shall not extend to the original Works, but only to the extent of the protectable modifications, extensions, and adaptations made by the Agency for the Client.
14.3 In all other respects, the Agency shall transfer to the Client the rights of use to its works required for the respective contractual purpose in the scope of use, duration of use, and spatial scope of application corresponding to the order description. Unless otherwise agreed, a non-exclusive right of use for the Client's own use shall be transferred in each case. 14.4 The Client shall be granted a non-exclusive right of use for its own use.
14.4 The Client shall only be granted a right to edit the Work as long as the right to edit has been expressly agreed upon or results from the nature of the order.
14.5 The rights of use to the Work shall only pass to the Client once the Client has paid the remuneration in full.
14.6 Insofar as the Work contains open source components, the rights transfer shall only take place to the extent and by the respective open source license. The Agency expressly points out that the open source components may only be used, processed, and the subject of dispositions within the scope of the respective license.
14.7 The Client's or its employees' Proposals and instructions shall not constitute a joint copyright.
14.8 The Agency shall be entitled to refer to the works designed and produced for the Client and the services rendered, subject to any express confidentiality obligations, for the purpose of self-promotion.
14.9 The Agency shall also be entitled to refer to its authorship in the imprint of websites and other online presences. The Client is not entitled to remove these references without the consent of the Agency.
15 Rights to online presences and data
15.1 Notwithstanding this Agreement, the Client shall become the owner of online presences if these have been created, acquired, or otherwise procured for the Client by the Agency within the framework of the contractual provision of services or have been expressly transferred by the Agency to the Client for the Client's disposal.
15.2 If the granting of ownership is not possible (e.g., due to conflicting general terms and conditions of a platform or because content/data via the online presence was managed by the Agency), the Agency shall grant the Client the right of disposal and use of the online presences to an extent as close as possible to ownership. This includes the granting of administration rights or the release of data.
15.3 Furthermore, the Agency retains the rights to the online presence, even if, for example, it uses its business or private online presence of its employees within the framework of fulfilling the contract.
16 Release of templates, drafts, and source code
16.1 The templates, drafts, raw data, files, and other working materials created by the Agency that serve to provide the service owed under the contract (hereinafter referred to as "templates") shall remain the property of the Agency. If the Client desires the surrender of the Templates, this shall be agreed upon and reimbursed separately.
16.2 If the surrender of the source code is agreed to or otherwise provided for (e.g., within the scope of an open-source license), its handover/provision of access in digital form shall be sufficient. If a right to edit the work has yet to be agreed, the Client may only use the source code if the Agency cannot or does not want to carry out an error correction, a change or an extension of the application within a reasonable period of time. The Client knows that to work with the source code, he may have to acquire developer licenses for the third-party components used. If the source code is not under an open content license, it may not be used within the scope of an application not part of the contractual agreement with the Agency unless otherwise agreed.
16.3 There is no obligation to retain the source code. The Agency shall be entitled to delete the templates and source code six months after the end of the contract.
17. offers, presentations, and pitches
17.1 The development of conceptual and design proposals by the Agency with the aim of the further placement of an order by the Client shall take place, notwithstanding deviating regulations in individual cases, against payment of the fee agreed with the Client for this (presentation fee).
17.2 Copyright, rights of use, and property rights to the work presented by the Agency in this context shall remain with the Agency even if a presentation fee is charged. The Client shall acquire these rights to the agreed extent only upon placing the order for realization against separate remuneration.
18 Acceptance
18.1 These regulations on acceptance shall only apply if they form the basis of a contract for work and services.
18.2 The object of acceptance shall be the contractually owed performance by the order description.
18.3 A prerequisite for acceptance is that the Agency hands over the service results to the Client in full and notifies the Client that the service is ready for acceptance. The handover of all service results necessary for acceptance shall constitute a request for acceptance.
18.4 Thereupon, the Client shall start the inspection of the acceptance capability within seven days.
18.5 If the acceptance fails, the Client shall provide the Agency with a list of all defects preventing the acceptance. After the expiration of a reasonable period, the Agency shall provide a defect-free version of the contractually owed service that is ready for acceptance. Within the scope of the subsequent inspection, only the recorded defects shall be inspected insofar as they can be the subject of an isolated inspection according to their function.
18.6 After successful testing, the Customer shall declare acceptance of the work results in writing (e-mail is sufficient) within seven days.
18.7 If no significant defects are reported beforehand, the Client shall accept the service results after two weeks have elapsed since they were submitted for acceptance.
18.8 The Customer may not refuse acceptance due to minor defects. These defects shall be listed individually in the acceptance protocol.
18.9 The preparation of the contractual services may be agreed upon in individual sections. The Agency shall be entitled to request the Client to carry out a partial or interim acceptance if this is objectively justified and reasonable for the Client due to the subject matter, scope, or timing of the performance of the services.
18.10. The acceptance, warranty, and remuneration provisions shall apply to the respective partial sections. This means, in particular, that change requests of the Principal which deviate from already accepted subsections shall be reimbursed separately by the Principal.
Part 3 - Warranty and liability
19. claims for material defects
19.1 Claims for defects shall not exist in the event of an insignificant deviation from the agreed or assumed quality or in the event of only insignificant impairment of the usability under the purpose of the contract. The contents of the order description shall not be deemed a guarantee or assurance of specific properties without a separate written agreement.
19.2 The Agency undertakes to create software in such a way that it has a response time and functional behavior that corresponds to the behavior of other software typical for the industry with comparable content and comparable scope as well as comparable server environment with comparable Internet connection and technical equipment of the hardware and software used by the end user to call up the software. Websites and comparable online offers must be executable within the browsers and resolutions customary in the industry at the time of the conclusion of the contract. Browsers with a version status of more than one year ago and browsers and screen resolutions that are represented on the market by less than 10% shall not be deemed to be customary in the industry.
19.3 Regarding updates, upgrades, and new software versions, the claims for defects in this respect shall be limited to the new features of the update, upgrade, or new version compared to the previous version.
19.4 If the Customer demands subsequent performance due to a defect, the Agency shall have the right to choose between rectification of the defect, replacement delivery, or replacement performance. If the Client has set the Agency a further reasonable period of grace after the first deadline has expired without result and this period of grace has also expired without result, or if a reasonable number of attempts at rectification, replacement delivery, or replacement performance have remained unsuccessful, the Client may, subject to the statutory requirements, choose to withdraw from the contract or reduce the price and demand compensation for damages or expenses. Subsequent performance may also be affected by handing over or installing a new software version or a workaround. If the defect does not impair the functionality or only insignificantly, the Agency shall be entitled to remedy the defect by delivery of a new version or an update within the scope of the version, update, and upgrade planning, to the exclusion of any further claims for defects.
19.5 Defects shall be notified in writing (e-mail is sufficient) employing a comprehensible description of the error symptoms, as far as possible, proven by written records, screenshots, or other documents illustrating the defects. The notice of defect shall enable the reproduction of the defect. Statutory obligations of the Customer to examine and give notice of defects shall remain unaffected.
19.6 Changes or extensions of the services or software made by the Client itself or third parties shall render the Client's claims for defects null and void unless the Client proves that the change or extension was not the cause of the defect. The Agency shall also not be liable for defects due to improper operation, operating conditions, or the Client's use of unsuitable operating materials.
19.7 The Agency may only accept subsequent performance once the Client has paid the Agency the agreed remuneration, less a portion corresponding to the economic significance of the defect.
19.8 The limitation period for claims for defects shall be one year from acceptance of the service. In the case of the delivery of updates, upgrades, and new versions, the period for these parts shall commence in each case with their acceptance.
19.9 Claims for damages shall be subject to the restrictions of Section 22 of these GTC ("Liability and Damages").
20 Use of services of third parties
20.1 The following provisions shall apply to the use of services of third parties by the Agency in the context of the performance of services for the Client. Third-party services shall mean services obtained from third parties on behalf of or otherwise within the scope of the Client's order, such as rights of use to online platforms, stock images, or open-source software.
20.2 If material defects or defects of title are based on the defectiveness of the performance of a third party and this third party does not act as a vicarious agent of the Agency. Still, the Agency, recognizable to the Client, merely passes on a performance to the Client. The Client's claims for defects shall be limited to the assignment of the claims for defects by the Agency against the third party (e.g., if open-source software is incorporated). The Agency shall be liable for the defect itself if the cause of the defect was set by the Agency, i.e., the defect is based on an improper modification, integration, or other treatment of the services of third parties for which the Agency is responsible.
20.3 The Agency shall not be responsible if third-party services are limited or discontinued altogether by the third party. If the third party introduces a fee for the provision of its services, the Agency has the right to adjust the remuneration agreed with the Client accordingly if the Client wishes to continue using the third-party services after consultation, and the remuneration would be charged to the Agency.
21. conduct of third parties
21.1 The Client acknowledges that the behavior of third parties in online media is difficult to calculate, and the Agency is not responsible for the behavior of third parties (e.g., negative comments, protests, etc.).
21.2 This does not apply if the Agency has culpably challenged this behavior. In this case, the liability shall be determined per Part 6 - Item 22 of these GTC ("Liability and Damages"). In determining the Agency's liability, the standards of conduct customary in the industry and reasonably expected patterns of conduct of third parties shall be taken as a basis.
21.3 The Agency shall inform the Client as soon as the conduct of third parties assumes a scope that could cause lasting damage to the Client's reputation or sales promotion.
21.4 If there are doubts about the legal admissibility of third-party content or factually justified reasons to assume possible damage to the Client, the Agency is entitled to depublish this content (e.g., delete comments) or ban users.
22 Liability and compensation
22.1 The Agency is liable under this contract only under the following provisions:
22.2 The Agency shall be liable without limitation for damages caused intentionally or by gross negligence by the Agency, its legal representatives, or executive employees, as well as for damages caused intentionally by other vicarious agents; for gross negligence by other vicarious agents, liability shall be determined per the provisions for slight negligence set forth below in Section 22.6 of these GTC.
22.3 The Agency shall be liable without limitation for damages caused intentionally or negligently by the Agency, its legal representatives, or vicarious agents resulting from injury to life, body, or health.
22.4 The Agency shall be liable for damages due to the lack of warranted characteristics up to the amount covered by the purpose of the warranty, which was recognizable for the Agency when the warranty was given.
22.5 The Agency shall be liable for product liability damages following the provisions of the Product Liability Act.
22.6 The Agency shall be liable for damages resulting from the breach of cardinal obligations by the Agency, its legal representatives, or vicarious agents; cardinal obligations are the essential obligations that form the basis of the contract, which were decisive for the conclusion of the contract and on the fulfillment of which the Client may rely. If the Agency has violated these cardinal obligations due to slight negligence, its liability shall be limited to compensation for the foreseeable, typically occurring damage (hereinafter "typical damage").
22.7 The typical damage shall, in principle, be limited to the specified amount and otherwise to the amount of the Client's contractual remuneration for the period in which the breach of duty occurred. This shall not apply if the limitation would be unreasonable in the individual case from the point of view of equity. The typical damage shall be at most five times the agreed remuneration.
22.8 The Agency shall advise and design exclusively based on the information, research, and its own knowledge provided by the Customer. The final decision on the measures to be taken and implementations shall be made by the Client.
Part 4 - Remuneration and billing
23 Remuneration
23.1 The remuneration and the payment schedule for the contractually owed services result from the order description. If the contracting parties have not agreed on a fixed remuneration, the remuneration shall be calculated based on time and effort. In this respect, the rates of the Agency valid at the time of the service performance shall apply.
23.2 Prices are quoted net, plus statutory value-added tax.
23.3 Unless otherwise agreed, the actual time spent shall be decisive for invoicing. The Agency shall generally invoice on an hourly basis. In the case of billing on a time basis, the smallest billing unit shall be 30 minutes.
23.4 The fees of the Provider may, under certain circumstances, be subject, in whole or in part, to the obligation to pay contributions under § 24 of the Artists' Social Insurance Act (KSVG). The Agency expressly points out that the Client, if it has to pay benefits to the artists' social insurance fund, must report by § 27 KSVG. In addition, the Client shall be obliged to keep records and to submit them to the KSVG under §§ 28, 19 KSVG.
23.5 The amount of the contributions to be paid by the Client to the artists' social insurance fund shall be calculated by §§ 23, 25, 26 KSVG. Services outside the agreed scope of services or subject matter of the contract shall be reimbursed separately by the Client. The applicable rates of the agency shall apply. The foregoing shall also apply to services based on incorrect or incomplete information provided by the Client, unverifiable notices of defects, improper use of the system, or breaches of duty by the Client.
The Customer shall bear 23.6 Fees of the Society for Musical Performing and Mechanical Reproduction Rights (GEMA).
23.7 Work that occurs outside the core working hours (working days 9 a.m. - 7 p.m.) at the instruction of the Client shall be charged at a factor of 150%.
23.8 In addition to the agreed remuneration, the Agency shall be entitled to reimbursement of the outlays and expenses required to provide the services, particularly travel and accommodation costs and expenses, as these have been approved by the Client on the merits. The Agency shall invoice these in an auditable form with the services rendered or separately on time. Unless otherwise agreed, travel expenses shall be calculated according to the actual costs incurred for 2nd class rail travel or economy class flights (incl. luggage/meal) or, in the case of travel by car, at 0.30 Euro/km net. The basis is the fastest route, according to the commercial route planner used by the agency. No travel costs are incurred in the local area of 10km. The starting point of the journey/departure is the address of the Agency unless otherwise agreed.
23.9 Insofar as the Agency receives a time-dependent remuneration, the Client shall be obliged to sign off on the evidence submitted as a sign of agreement without delay, at the latest, however, within seven days of receipt. Insofar as the Client disagrees with the submitted evidence, it shall set out any reservations about the evidence in detail in writing within this period. The contracting parties shall then immediately attempt to reach a clarification. Subsequently, the evidence shall be signed off by the client without delay. Upon payment, the evidence shall be deemed to have been signed off.
24 Settlement
24.1 Payment shall be due at the agreed time.
24.2 Unless otherwise stated, invoices shall be due for payment without deduction within seven days of the invoice date.
24.3 If the Agreement ends prematurely, the Agency shall be entitled to the remuneration corresponding to its services rendered until the termination of this Agreement.
24.4 In the case of services under a contract for work and services, the remuneration shall be due upon (partial) acceptance of the service unless otherwise agreed. In the case of an order exceeding 10,000 Euros, the Agency shall be entitled, even without a separate agreement, to 30% of the order amount before commencement of the work, 30% in the middle of the agreed project period, and 40% after acceptance. If the services contain costs that are to be anticipated for third-party products/services, the Agency shall be entitled to payment thereof before it performs these services.
24.5 Third-party costs (e.g., costs of stock images, advertising costs on online platforms) and expenses incurred in consultation with the Client for the performance of services shall, at the discretion of the Agency, be passed on to the Client for direct payment to third parties or integrated by the Agency into its own invoicing. Any discounts from third parties are to be compensated to the client. The Agency is entitled to make the performance of the service dependent on the payment of the third-party costs by the Client in advance.
24.6 Unless otherwise agreed, invoices may be issued electronically, sent by e-mail, or made available for download online.
24.7 Unless expressly agreed otherwise, all amounts are net, i.e., exclusive of statutory value-added tax.
24.8 Insofar as payment by SEPA direct debit has been agreed, the following shall apply:
The forthcoming direct debit collection shall be announced in advance at the latest one calendar day before the due date of the direct debit (advance information/prenotification).
24.9 In the event of late or deferred payment, interest on arrears and collection costs shall be charged. In the event of default in payment, the Agency may defer further execution of the current order until payment has been made and demand advance payment for the remaining placement. This shall not affect the assertion of further rights.
24.10. Objectively justified doubts about the Client's ability to pay shall entitle the Agency, even during the term of the contract, to make the further provision of services dependent on the advance payment of the amount and the settlement of outstanding invoice amounts, irrespective of any agreed initially payment deadline.
24.11. A reminder fee of 5.00 euros shall be charged for each reminder of the invoice. The client reserves the right to prove lower reminder expenses.
24.12. The Client shall be obliged to ensure sufficient funds are in the account and the amounts due can be collected. This obligation shall also apply if the Client still needs to receive advance information or receive it in time in individual cases. 24.13. The debited amount shall be credited to the Client's account.
24.13. In individual cases, the amount debited may differ from the amount notified in the individual statement or in the individual advance information if several statements have the same due date. The total amount (=total from the statements) shall be collected on the due date.
24.14. The Client may only offset undisputed or legally established claims against claims of the Agency. The Client shall only be entitled to assert a right of retention due to counterclaims arising from the same legal relationship.
24.15. If a completion date has been set for a project by which the Agency would be entitled to invoice its services, and if the completion date could not be met due to circumstances for which the Client is responsible (e.g., lack of provision of content), the Agency may invoice the agreed remuneration on the completion date as if the project had been completed on that date without the relevant delay.
25 Adjustment of prices
25.1 The Agency reserves the right to adjust the stated price by these increases if statutory taxes and duties change or new duties and taxes are levied on the Provider's products.
25.2 In the case of continuing obligation contracts, the Agency shall be entitled to an appropriate increase of the agreed fees after announcement. Such an increase shall take effect at the end of the billing period.
25.3 A price reduction shall take effect at the end of the billing period after the price change.
25.4 If the purchase prices for services of third parties increase, this increase may be passed on to the Principal in the same proportion.
25.5 If the Customer disagrees with the adjustment, it may terminate the Agreement by observing the notice period as of the day the new fee comes into effect. If the regular notice period of the Agreement exceeds 30 days, a notice period of 30 days shall apply in deviation therefrom.
Part 5 - Contract Term and Termination
26 Term of Contract
26.1 In the case of contracts agreed as continuing obligations, the term of the contract shall correspond to the agreed term of the contract. If the contract term is not expressly agreed nor specified in the associated special provisions in these GTCs, it shall be 12 months.
26.2 The billing period of additional options (e.g., services) shall correspond to the billing period of the main contract. If the option is ordered during the term of the main contract, the first contract term shall be adjusted to match the remaining term of the main contract.
26.3 The termination of dependent options of a contractual relationship shall not affect the contractual relationship as a whole unless the entire contractual relationship is terminated.
27 Ordinary termination
27.1 If the notice period is not expressly agreed upon nor specified in the associated special provisions in these GTCs, it shall be 30 days before the contract's end.
27.2 The notice period of independently terminable parts/options of a contract shall correspond to the notice period of the main contract.
27.3 If no timely notice of termination is given, the term of the Agreement shall, subject to any other agreement, be automatically extended by the same period after the expiry of its time.
28 Extraordinary Termination
28.1 Either party may give extraordinary notice of termination of contracts based on these GTC for good cause if one or more agreements have not been complied with by the other party and if, after a written request to remedy the situation, the other party culpably fails to remedy the situation within the set and reasonable period of time or, failing that, within a reasonable period of time.
28.2 Extraordinary termination shall also be possible without prior request for improvement if the terminating party cannot reasonably be expected to continue the contract, taking into account all circumstances of the individual case and weighing the interests of both contracting parties.
28.3 Good cause shall be deemed to exist in particular if
- the Agency fails to meet an expressly agreed completion date and allows a reasonable period of grace set by the Client to expire fruitlessly unless the Agency is not responsible for the delay;
- one of the contracting parties grossly violates its obligations under this contract or respective order;
- insolvency proceedings are opened against the assets of the other contracting party or the opening of insolvency proceedings is rejected due to lack of assets.
28.4 Termination shall be made in writing.
28.5 After termination of the contractual relationship, the Agency shall no longer be obliged to provide the contractual services. Subject to agreed or statutory retention obligations, the Agency may delete all Client data. The timely storage and backup of data is, therefore, the Client's responsibility.
Part 6 - Data protection, confidentiality, changes to the GTC, and final provisions
29 Data Protection
29.1 The Client's personal data shall only be collected, processed, and used for the performance of the contract under these GTC and other contractual agreements. By concluding the contract, the Customer agrees to collect, process, and use its data in electronic data processing systems.
29.2 The contracting parties shall observe the relevant data protection regulations. In particular, the Agency shall only collect, process, or use the personal data of third parties, which the Client forwards to it or which it collects, processes, and uses on behalf of the Client within the framework of the Client's instructions. Furthermore, it shall be incumbent on the Principal to comply with the data protection requirements.
29.3 The Parties shall maintain strict secrecy about all operational and other business information and findings of the other Party that become known to them in connection with the performance of the Agreement. This shall apply to all employees, if applicable to the customer of the Principal, as well as to third parties used by a party for the performance of the obligations arising from the contract. The obligation to maintain secrecy shall survive the termination of the Agreement.
29.4 The Agency shall not be liable for data processing and data analysis performed by third parties.
30 Confidentiality
30.1 The Contracting Parties undertake to treat as confidential all confidential information of which they become aware during the performance of this Agreement and to use it only for contractually agreed purposes.
30.2 Confidential information within this provision shall be information, documents, details, and data designated as such or which by their nature are to be regarded as confidential. The obligation to maintain confidentiality shall not apply to already prominent developments (are generally known, belong to the state of the art, etc.) and are therefore no longer secret or protectable. If a development becomes public later, the obligation shall expire as of that date.
30.3 The contracting parties undertake to grant access to confidential information of the Customer only to those employees entrusted with the performance of services under this Agreement. Both contracting parties shall be obligated to have their employees sign a corresponding declaration of obligation upon request of the respective other party and to submit it to the other party. The contracting parties shall not file any applications for property rights for confidential information of the respective other party.
30.4 If confidential information in the aforementioned sense is requested by a public body, this party shall be informed immediately and before the information is handed over to the public body, if possible and reasonable.
30.5 The rights and obligations under this section on confidentiality shall not be affected by any termination of this Agreement. Both Parties shall, at their option, return or destroy Confidential Information to the other Party upon termination of this Agreement to the extent such Confidential Information has not been adequately consumed.
30.6 Irrespective of any claim for damages, the Client undertakes to pay the Agency a contractual penalty of at least EURO 5,000.00 for each case of culpable breach of this confidentiality agreement.
30.7 Public declarations of the Contracting Parties about cooperation, unless obvious or permissible according to contractual agreements, shall only be made by prior mutual consent.
31. Non-solicitation
31.1 Both contracting parties may not directly or indirectly entice away from each other any employees or subcontractors, also called partners. Furthermore, the contracting parties shall be prohibited from employing an employee in their own company during an employment relationship with the respective contracting party.
31.2 The aforementioned restrictions shall not apply if the employer has given written consent to the project before the employee's employment with the other contracting party. In the event of a violation, a contractual penalty to be determined based on equity and amounting to 50,000.00 Euro shall be due unless the contracting party was unaware of the employee's employment with the other contracting party when hiring the employee.
32 Amendment of the GTC
32.1 The Agency reserves the right to amend the GTC at any time with effect for the future. The amendment shall only be made if there are valid and objective reasons, particularly legal, technical, and business nature, and only if the Client can reasonably be expected to accept such amendment.
32.2 In the event of amendments, the Agency shall notify the Client of the amended GTC at least in text form so that the Client has two weeks to object to the amendment. In the event of an objection, the Client and the Agency shall have the right to terminate. The termination may not take place if it would unreasonably affect the contractual interests of the client. The Client shall be deemed accepted if they do not object to the amended terms and conditions within the time limit.
33. Performance Guarantee:
If, after six months from the start of Email Marketing Services (Setup month excluded), the total revenue generated through email marketing is less than 1.2 times the fees paid to the Agency, the Agency will provide up to 75 days of additional Email Marketing Services at no cost, until the revenue target is met.
33. 1 Scope of Guarantee:
This guarantee applies exclusively to Email Marketing Services as outlined in this Agreement.
33. 2 Client's Obligation:
The Client must actively engage in other marketing channels to drive revenue. Failure to do so, failing to meet the revenue target, is not the responsibility of the Email Marketing Agency.
33. 3 Miscellaneous:
This guarantee is subject to the terms of the main Agreement and does not affect other provisions. Disputes are subject to the central Agreement's dispute resolution process.
34. Refund Policy and Limitations on Refund Claims
Refunds shall not be granted in cases where client Key Performance Indicators (KPIs) or responsibilities have not been met, regardless of the project’s performance. Refunds may only be issued under extraordinary circumstances, which must be accompanied by a specific, well-documented reason, demonstrating substantial non-compliance on the part of the Agency as confirmed by the Agency. Additionally, the Agency shall not be liable for refund claims based on external factors outside of its control, including but not limited to delays or disruptions caused by client actions, failure to provide necessary inputs, or any instances of non-cooperation that hinder service effectiveness. By accepting these terms, the Client acknowledges and agrees to abide by these conditions and waives any claims for refunds that do not meet these strict requirements.
35. Final provisions
35.1 The place of performance shall be the registered office of the Agency.
35.2 The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship shall be the Agency's registered office, provided that the Client is a merchant, a legal entity under public law, or a special fund under public law or the Client has no place of jurisdiction in the Federal Republic of Germany. The Agency reserves the right to assert its claims at the legal place of jurisdiction.
35.3 The Client may only transfer claims against the Agency based on this contract to third parties with the consent of the Agency.
35.4 Should one or more provisions of these GTCs or the contract on which they are based be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provision(s) shall instead be replaced by a supplementary interpretation of the contract by such a provision that comes as close as possible to the economic purpose recognized by the contracting parties with the invalid provision(s). The same shall apply to the filling of any loopholes.