T&C (German)

§1 General, scope of application

(1) All deliveries, services and offers of Twist & Schirm Social Media GmbH, Leopoldstr. 31, 80802 Munich, Germany (hereinafter "T&S") are exclusively based on these General Terms and Conditions (hereinafter these "GTC"). These are an integral part of all contracts that T&S concludes with its contractual partners (hereinafter the "Customer") regarding the deliveries or services offered by T&S (T&S and the Customer hereinafter each individually the "Contractual Partner" and jointly the "Contractual Partners"). These GTC shall only apply if the Principal is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.

(2) These GTC shall also apply to all future deliveries, services or offers made to the Client within the scope of a term contract, without these GTC having to be agreed separately in each individual case. Unless otherwise agreed, these GTC shall apply in the version communicated upon conclusion of the term contract.

(3) These GTC shall apply exclusively. Deviating, conflicting or supplementary GTC of the ordering party or third parties shall only become part of the contract if and to the extent that T&S have expressly consented to their application in writing. The general terms and conditions of the ordering party or third parties shall therefore not apply subject to express consent, even if T&S do not separately object to their application in individual cases or refer to the exclusive application of these general terms and conditions. The consent requirement shall apply in any case. In particular, the reference by T&S to a letter containing or referring to the GTC of the Principal or a third party as well as the unconditional performance or delivery in knowledge of the GTC of the Principal or third party shall not constitute consent to the validity of those GTC.

(4) These GTC shall apply in addition to individual offers or contracts. If and to the extent that agreements made with the Client in individual cases (including ancillary agreements, supplements and amendments) contain deviations from these GTC, such deviations shall in any case take precedence over these GTC. The remaining provisions of these GTC shall remain unaffected.

(5) If written form is required in these GTC, § 126 of the German Civil Code (BGB) shall apply. Unless individual provisions of these GTC expressly provide otherwise, the transmission by telecommunication of a copy of the respective document, in particular by fax or as a PDF copy by e-mail, shall be sufficient to comply with the form requirement, provided that the copy of the signed declaration(s) is transmitted.

(6) Both parties agree that the electronic signature on all contracts and offers is legally binding.

(7) References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

§2 Subject matter of the contract

(1) T & S an agency for online marketing, which serves customers in all fields of digital marketing, social media marketing and search engine marketing. The aim of the cooperation with the Client is the referral of visitors to the Client's websites and/or webshops and an increase in traffic to the Client's websites (together "Traffic").

(2) T & S provides the Customer with a comprehensive portfolio of services. The specific services owed result from the individual offer of T & S agreed between the contracting parties, which also regulates the remuneration, the term and any other modalities of the cooperation.

(3) The Customer is aware that, in view of the nature of the services owed, a specific success cannot be guaranteed. In particular, the Customer cannot demand that T & S achieve certain sales figures, calls, referrals or click figures. The contracting parties agree in this respect that the services provided by T & S are of a contractual nature.

§3 Offer, conclusion of contract

(1) The services of T&S displayed, advertised and offered on the website of T&S or in other advertising media or on other platforms do not constitute binding offers. This also applies if product samples, catalogs, technical documentation, other product descriptions, documents, demo accesses or examples of services of T&S (such as stores, websites, newsletters, graphics or texts) are provided to the ordering party - also in electronic form - unless the transmission is part of an individual offer.

(2) Individual offers from T&S shall have a validity period and acceptance period of one month from receipt of the offer by the ordering party, unless the offer specifies otherwise. T&S may accept orders or commissions from the ordering party within two weeks of receipt.

(3) Information provided by T&S on the subject matter of the delivery or service as well as representations in this respect are only approximately authoritative, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components with equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.

(4) The legal relationship between T&S and the Client shall be governed by the contract concluded in text form for the provision of a service by T&S including these GTC. The text form is satisfied by e-mail. The contract fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Subsidiary agreements and supplements to the concluded contract must at least be in text form (e.g. e-mail), unless otherwise stipulated in these GTC. § 1 para. 4 of these GTC remains unaffected.

§4 Prices, Terms of Payment, Fälligkeit

(1) The agreed prices shall apply to the scope of services or deliveries listed in the signed contract, otherwise in the offer or in the order confirmation of T&S. Subsequently ordered change requests and additional services (including additional or special services) shall be charged separately.

(2) All prices are quoted in Euro plus the statutory value added tax and any packaging costs. Any expenses incurred in the interest of the Client (e.g. application and registration fees) shall be reimbursed separately. In the event of invoicing on an hourly basis, the time required for the provision of the service stated in advance shall be based on estimated values; the actual amount of work shall be decisive.

(3) In the case of term contracts, the services of T&S shall be invoiced monthly in advance at the beginning of each month. In the case of individual orders, change requests and additional services, the services of T&S shall generally be invoiced before the services are rendered. T&S shall be entitled to render services only against partial or full advance payment or provision of security; this shall apply in particular to orders of a larger scope and workload, if the Ordering Party has defaulted on payment in the past or if T&S becomes aware of circumstances after conclusion of the contract which are likely to significantly reduce the creditworthiness of the Ordering Party and as a result of which the payment of T&S's outstanding claims by the Ordering Party under the respective contractual relationship is jeopardized.

(4) As a rule, the contracting parties shall agree on a monthly flat-rate fee for the contractual services and, if applicable, a one-time flat-rate setup fee, the amount of which shall be determined in each case by the individual offer. The monthly flat-rate remuneration shall be paid monthly in advance on the first of each month. Otherwise, the invoices of T&S shall be due for payment without deductions within (7) seven days after invoicing (date of invoice) at the latest. The date of receipt by T&S shall be decisive for the date of payment. Payment by check is excluded.

(5) Insofar as agreed, the remuneration shall be increased in each case by a variable performance-related share. This profit share shall be determined on the basis of the revenue generated by the online store or other sales activities of the Client in the respective assessment period (usually one month) or on the basis of the leads generated by T & S. The relevant revenue/leads shall be all revenues/leads measured in the advertising account/advertising platform. All sales / leads measured in the advertising account / advertising platform are decisive for the relevant sales / leads, not only the campaigns managed by T&S within the advertising account / advertising platform, but all ongoing campaigns in the performance period. For Meta Ads & TikTok Ads, revenue / leads are calculated according to the attribution model "28d click / 1d view, 28d click / 7d view, 7d click / 7d view or 7d click / 1d view" or a newly introduced model, depending on which of these models outputs the most revenue / leads. For Google Ads, revenue / leads are calculated according to the attribution model "Last click, First click, Linear, Timeline, Position based, Data driven" (each with the largest attribution window) or a newly introduced model, depending on which of these models outputs the most revenue / leads. If 3rd party tracking solutions are used (e.g. Google Analytics, Google Data Studio, Triple Whale, Hyros), the measured revenue / leads will be based on the model that outputs the higher revenue / leads between the advertising platform and the 3rd party solution. For other advertising platforms (e.g. Klaviyo), the highest attribution time window is used as a basis, as well as the attribution model that shows the most revenue / the most leads. The remuneration of this profit sharing for increase of traffic will be invoiced to the client after the end of the respective period (usually one month) and is due for payment within (7) seven days after invoicing (date of invoice) without deductions. The date of receipt by T&S shall be decisive for the date of payment.

(6) If the Customer is in default of payment, T & S is entitled to suspend its performance of services until the outstanding amount has been settled. In this case, the Customer remains obliged to pay the agreed prices.

(7) Insofar as payment by SEPA direct debit has been agreed, the Customer warrants that the account is covered. Costs incurred due to non-payment or reversal of the direct debit shall be borne by the client. In both cases the client is automatically in default. A separate payment reminder is not required for this.

(8) If the Customer is in default of payment of the monthly price for two consecutive months or, in a period extending over more than two months, in default of payment of the fee in an amount equal to the fee for two months, T & S shall be entitled to terminate the contract without notice.

§5 ÄAMENDMENTSüAdditional services

(1) The signed contract shall be decisive for the scope, type and quality of the deliveries and services, otherwise the offer or the order confirmation by T&S shall be decisive. Requests for changes with regard to the contractually agreed performance of T&S and additional services that go beyond the contractually agreed range of services may also be requested and transmitted by T&S by e-mail.

(2) T&S may refuse the change requests or additional services if the provision of these services would involve unreasonable effort. T&S may accept or reject the change requests or additional services within two weeks after receipt.

(3) In the case of requests by e-mail, the acceptance or rejection of the change requests or additional services by T&S shall also be declared by e-mail.

(4) Additional remuneration on an hourly basis shall be incurred for the fulfillment of the change requests or the provision of the additional services, unless a fixed price for the changes or additional services has been agreed between the contractual partners. If a fixed price had been agreed for the original performance by T&S, T&S shall inform the Principal in advance of the hourly rate applied and the additional costs likely to be incurred. If an hourly rate was already agreed for the original service by T&S, this hourly rate shall also apply to the changes and additional services. In this case, the Client shall only be informed of the expected duration upon request.

(5) The time required for the provision of the change requests or additional services specified in advance in the case of invoicing on an hourly basis shall be based on estimated values. The actual amount of work shall be decisive.

§6 Cooperation of the Customer

(1) An essential factor for the provision of the services by T & S is the cooperation of the Customer. The Customer shall provide T & S with the data and documents required for the marketing services free of charge.

(2) After being informed accordingly by T & S, the Customer shall make the necessary arrangements for the calculation of the traffic, in particular take the technical measures required for the measurement.

(3) The online marketing or marketing services shall be performed in close consultation between the Customer and T & S. If the Customer does not agree with the way in which the services are operated and provided in material respects, this must be notified to T & S without delay. Otherwise, the method of operation and provision of services shall be deemed to be in accordance with the contract. Insofar as online marketing or marketing services must be released by the Client, or a legal or agreed obligation to accept exists, the Client shall declare release or acceptance in writing without delay as soon as the services have essentially been provided in accordance with the contract. If the release or acceptance is not declared within 5 (five) working days after delivery of the service, the respective service shall be deemed released or accepted.

(4) The Customer is obliged to grant T & S all necessary rights for accounts with the relevant online services and advertising accounts (esp. social media platforms, websites, webshops) upon conclusion of the contract. In part, the Client shall provide the access data (user name, password, etc.) for this purpose, insofar as these are necessary for the provision of the contractually owed services. Insofar as the communication of passwords is necessary for the performance of the contractual obligations, T & S shall explicitly request the Customer to transmit them.

(5) If the client withdraws access to the online services and advertising accounts from T & S, the client shall, upon request, immediately send T & S the calculation of the traffic required to calculate the performance-based participation in accordance with § 4 (5) of the GTC (number of orders, clicks, leads, etc.). If the client fails to comply with this obligation, T & S shall be entitled to use the average of the last three months as the basis for calculating the turnover and to calculate the performance-based participation on this basis until the client allows T & S access to the online services and advertising accounts again. If the contractual relationship has not yet lasted three months at this point in time, the average turnover of the previous term shall be used as the basis for calculation.

(6) If the Customer fails to meet its obligations to cooperate within a reasonable period despite being requested to do so by T & S, T & S shall be released from its obligations to perform for this period. In this case the Customer remains obliged to pay the agreed prices. Insofar as the respective online marketing service cannot be provided due to non-fulfillment of the obligation to cooperate, or if the Customer fails to fulfill the obligation to cooperate after being requested to do so by T & S, T & S may withdraw from the contract subject to a reasonable period of notice or terminate the contract for the future and claim damages for non-fulfillment.

§7 Service provision, deadlines, delaysödelays

(1) T&S shall be free to determine the content, manner, scope, time and place of performance within the scope of what has been contractually agreed. T&S may also use freelancers and other subcontractors in the provision of services.

(2) The dates specified in the signed contract - otherwise the dates specified in the offer or in the order confirmation of T&S - shall be binding. The dates stated therein shall be observed by both contracting parties. The Ordering Party shall be obligated to provide the data, documents and information required for the performance of services by T&S as soon as possible and to perform any other acts of cooperation required on its part.

(3) T&S shall not be responsible for delays in performance due to force majeure and due to circumstances for which the Principal is responsible and shall be entitled to postpone the performance of the affected services by the duration of the hindrance plus a reasonable start-up and planning period. T&S shall notify the Principal of delays in performance due to force majeure. In the event of a minimum contract term, delays for which the Ordering Party is responsible at the beginning or during the term of a contract shall extend the minimum contract term by the delay period.

§8 Acceptance, correction

(1) Insofar as a concrete result is owed in the contract by way of exception, the Client shall be obliged to accept or correct the service provided by T&S, in particular also drafts and interim results, within two weeks of receipt of the request by T&S. The Client may not refuse acceptance for artistic reasons. Acceptance may not be refused on creative-artistic grounds. There shall be freedom of design within the scope of what has been contractually agreed.

(2) If the Client fails to declare acceptance within two weeks after receipt of the request or to demand correction within this period, T&S shall be deemed to have accepted the service.

§9 Retention of title

Delivered products remain the property of T&S until full payment has been received.

§10 ErfüPlace of performance

The place of performance for all obligations arising from the contractual relationship shall be Munich, unless otherwise stipulated. If T&S is also responsible for installation, the place of performance shall be the place where the installation work is carried out.

§11 Copyright, rights of use, infringement of third party rights

(1) All copyrights, ancillary copyrights and other rights to the Customer's website/online store and its content shall remain with the Customer. However, the Customer shall grant T & S the simple rights of use, in particular copyrights and ancillary copyrights, required for the contractual use of the website/online store for the duration of the contract as well as territorially and in terms of content to the extent required for the execution of the contract. The right of use includes in particular the right to reproduce, distribute, make publicly available and edit. The right is not transferable, but includes the right to sublicense the aforementioned rights of use within the scope of the terms and conditions of this contract to third parties commissioned to fulfill the contract and to grant search engine operators and social media platforms the rights of use required for marketing within the scope of fulfillment of the contract.

(2) T&S shall retain ownership or copyright of all offers and cost estimates submitted by them as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Principal within the scope of an offer. The Ordering Party may not make these items accessible to third parties as such or in terms of content, disclose them, use them itself or through third parties or reproduce them without the express consent of T&S. The Ordering Party shall not be entitled to use or reproduce these items in any other way. At the request of T&S, he/she shall return these items in full to T&S and destroy any copies made if they are no longer required by him/her in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. The storage of electronically provided data for the purpose of usual data backup is excluded from this.

(3) The services provided by T&S are legally protected. T&S is exclusively entitled to the copyright, any patent rights, trademark rights and other intellectual property rights.

(4) The Purchaser shall receive the simple, non-transferable right to use the products created for the Purchaser by T&S in accordance with the purpose of the contract, which right shall be unrestricted in terms of time and territory. The Ordering Party shall only be entitled to use the services provided by T&S itself in its own business and for its own purposes and may not pass them on or resell them to third parties without the prior written consent of T&S, with the exception of the passing on of products that are intended for distribution to third parties according to their purpose (e.g. newsletters). If the Ordering Party violates this or if the Ordering Party fails to meet its payment obligations pursuant to § 3 of these General Terms and Conditions even after setting a reasonable deadline, the right of use shall expire or be suspended for the duration of the breach of contract and T&S shall be entitled to prohibit the use of its works protected by intellectual property rights.

(5) The Ordering Party warrants that it has all rights to modify and publish texts, fonts, images and all other copyright-protected materials that it makes available to T&S for use in its advertising or in its online store. He further warrants that he has the right to transfer the rights of use of such material to T&S so that T&S may publish such material in his name on its website or in its online store. Any liability of T&S arising from the infringement of property rights, copyrights, rights of use or other intellectual property rights of third parties to the materials provided by the ordering party is excluded.

(6) If the Client is subject to special labeling obligations when using material protected by copyright or other intellectual property rights (e.g. licensing requirements in the case of so-called stock images), the Client must expressly inform T&S of this and provide appropriate instructions for action.

(7) If T&S does not receive any further information on the transmitted material, they may assume that they are free to use this material for the Client. This includes changing, supplementing or shortening the content of texts, cropping, supplementing, alienating or changing images and other material protected by copyright or other intellectual property rights in the sense of the client and publishing them in the client's name without citing sources.

(8) If third parties assert claims against T & S alleging that the Customer's website/online store or its use by search engine operators, social media platforms or other users violate statutory provisions and/or that the website/online store violates their rights, the Customer shall indemnify T & S against all claims by third parties upon first request and reimburse any costs and damages in excess thereof, in particular indemnify T & S against the costs of any necessary legal defense. However, this shall not apply if the Customer is not responsible for the infringement of the rights of third parties or statutory provisions. The Ordering Party shall be obliged, within the scope of what is reasonable, to support T&S in its legal defense against the third parties by providing information and documents.

§12 Data protection, password security

(1) T&S shall be entitled to electronically store the data relating to the respective order and to process and use this data for operational purposes in accordance with the statutory provisions.

(2) The disclosure of data to third parties is only permissible insofar as this (for example, when registering domains or the like) is the subject of the contract or necessary for the performance of the contract or disclosure is required by law or by official order.

(3) The contractual partners are obliged to transmit passwords, personal data and other highly sensitive information only securely.

(4) The statutory obligations under the General Data Protection Regulation (DSGVO), the Federal Data Protection Act (BDSG) and the Telecommunications Act (TKG) shall remain unaffected.

§13 Order processing

(1) Insofar as T & S processes personal data of the Customer on the Customer's instructions, the scope of which requires the conclusion of a contract on commissioned processing pursuant to Art. 28 DSGVO, the following provisions shall apply.

(2) The subject matter and duration of the agreement shall be determined by the individual contract or offer text and the general terms and conditions set out in § 14 "Minimum contract term and notice period for term contracts".

(2) T&S shall process personal data exclusively within the scope of the agreements made and in accordance with the instructions of the ordering party as well as in accordance with applicable laws. T&S shall not use the data provided for processing for any purpose other than that intended by the ordering party. If the contractor is of the opinion that an instruction of the ordering party violates data protection regulations, it shall immediately inform the ordering party thereof.

(3) T & S is obliged to comply with the statutory provisions on data protection and not to disclose the information obtained from the client's area to third parties or expose it to their access. Furthermore, T & S shall oblige all persons entrusted with the processing and fulfillment of this contract (hereinafter referred to as "employees") to maintain confidentiality, Art. 28 para. 3 lit. b GDPR.

(4) T & S shall design its internal organization in such a way that it meets the special requirements of data protection. T & S undertakes to take all appropriate technical and organizational measures for the adequate protection of the Client Data pursuant to Art. 32 DSGVO and to maintain these measures for the duration of the processing of the Client Data.

(5) In the event of disruptions, suspected data protection violations or breaches of contractual obligations, suspected security-related incidents or other irregularities in the processing of Customer Data, T & S shall inform the Customer without delay. In such cases, T & S will support the Customer in fulfilling its obligations to clarify, remedy and inform the Customer as far as is reasonable.

(6) T & S undertakes to comply with all statutory documentation and support obligations pursuant to Articles 30 (2), 35 and 36 of the GDPR.

(7) The Customer shall be entitled to regularly satisfy itself of compliance with the provisions of this Agreement, in particular the implementation of and compliance with the technical and organizational measures of this Agreement. For this purpose, it may, for example, obtain information from T & S, have existing test certificates from experts, certifications or internal audits presented to it or have the technical and organizational measures checked by T & S itself in person or by a competent third party during normal business hours, provided the third party is not in a competitive relationship with T & S. The Customer shall only carry out checks to the extent required. The Customer shall only carry out checks to the extent necessary and shall show reasonable consideration for T & S's operating procedures. The contracting parties shall agree on the time and type of inspection in good time.

(8) The contractually agreed services shall be performed using subcontractors (e.g. newsletter systems such as CleverReach, Emarsys or other advertising systems such as Google AdWords). Within the scope of its contractual obligations, T & S is authorized to establish further subcontracting relationships with subcontractors ("subcontractor relationship"). T & S shall inform the Customer of this without delay. T & S is obliged to carefully select subcontractors according to their suitability and reliability. When engaging subcontractors, T & S shall oblige them in accordance with the provisions of this Agreement and shall ensure that the Customer can also exercise its rights under this Agreement (in particular its inspection and monitoring rights) directly against the subcontractors. If subcontractors in a third country are to be involved, the Contractor shall ensure that an appropriate level of data protection is guaranteed at the respective subcontractor (e.g. by concluding an agreement based on the EU standard data protection clauses). The Contractor shall provide the Customer with evidence of the conclusion of the aforementioned agreements with its subcontractors upon request.

(9) T & S shall support the Customer with suitable technical and organizational measures in fulfilling the Customer's obligations pursuant to Articles 12-22 as well as 32 and 36 of the GDPR. If a data subject asserts rights directly against T & S, such as the right to information, correction or deletion with regard to his or her data, T & S shall not respond independently, but shall immediately refer the data subject to the Customer and await the Customer's instructions.

(10) After termination of the main contract or at any time upon the Customer's request, T & S shall return to the Customer all documents in paper form, data and data carriers provided to it or - at the Customer's request, unless there is an obligation under Union law or the law of the Federal Republic of Germany to store the personal data - delete them.

(11) T&S stores all data exclusively in a secure DSGVO-compliant cloud storage as well as on encrypted and password-protected end devices. The operating systems and software used are always kept up-to-date and anti-virus software is installed on all devices used. All T&S employees are trained on possible dangers and their defense. The documentation required by the DSGVO can be viewed upon request. T&S assures that they can provide information about all storage locations of personal data and their copies in their systems at any time.

§14 Secrecy, RüReturn of Documents

(1) The contracting parties shall treat all business secrets, including the content of this contract, as well as other information of the other party marked as confidential (hereinafter referred to as "confidential information") as confidential. The receiving party ("Recipient") shall treat the Confidential Information with the same care as it treats its own confidential information of the same sensitivity, but at least with the care of a prudent businessman.

(2) Confidential information within the meaning of paragraph 1 also includes the circumstance of the conclusion of the contract and the business relationship of the contractual partners themselves. Disclosure of the business relationship is therefore prohibited to the contractual partners, regardless of whether this takes place online or offline, e.g. on public portals, websites, media platforms, social media channels or rating portals.

(3) Any use of the Confidential Information shall be limited to use in connection with this Agreement. The disclosure of confidential information to third parties is not permitted without the prior consent of the disclosing party. Consents must be in writing. Third parties within the meaning of this paragraph shall not be affiliated companies of the Parties and consultants who are obliged by law to maintain confidentiality.

(4) To the extent required by applicable law, the Recipient shall also be entitled to disclose and share Confidential Information. To the extent permitted by law, the Recipient shall inform the Disclosing Party prior to the disclosure of Confidential Information.

(5) The contractual partners shall impose on their employees or third parties to whom they pass on confidential information a confidential treatment of this information within the framework of the respective subcontractor and employment relationships with the proviso that the obligation to maintain confidentiality shall also continue beyond the end of the respective subcontractor or employment relationship insofar as a corresponding general obligation to maintain confidentiality does not already exist.

(6) Exempt from the obligation of confidentiality is information that is

a) were already generally known at the time the contract was concluded or subsequently become generally known without any breach of the confidentiality obligations contained in this contract;

(b) developed by the recipient independently of this contract; or

c) the Recipient has received from third parties or outside this Agreement from the Disclosing Party without an obligation of confidentiality.

The burden of proving the existence of the exceptions set forth in this paragraph shall be on the party relying on the exception.

(7) Upon termination of this Agreement, the contracting parties shall surrender or delete confidential information of the other party in their possession at the request of that party. Excluded from this is confidential information for which there is a longer legal obligation to retain data as well as data backups as part of normal backup processes.

(8) The obligation to maintain confidentiality shall apply for the term of this Agreement and for a period of three (3) years after termination of this Agreement.

(9) T & S is entitled to use experiential knowledge, such as ideas, concepts, methods and know-how, which is developed or disclosed in the course of the performance of the contract and which is stored in the memory of the persons employed by T & S to perform the services. This shall not apply insofar as this infringes industrial property rights or copyrights of the Customer. The obligation to maintain confidentiality remains unaffected.

(10) The Customer shall pay T & S a contractual penalty of EUR 6,000.00 for each culpable breach of the obligations set out in this § 14 of these GTC by the Customer, its employees, consultants, subcontractors or other third parties engaged by it. In the event of a permanent breach of this agreement, the Customer undertakes to pay T & S a further contractual penalty of EUR 500.00 for each additional day that the breach continues. T & S reserves the right to assert further rights, such as claims for damages or injunctive relief. The contractual penalty shall be offset against any damages to be paid.

§15 Exclusivity

Unless the contracting parties have stipulated otherwise in the individual contract, the Customer assures T & S of exclusivity for the term of the contract or for the period during which T & S provides the online marketing or marketing services, i.e. the Customer will not commission any other company to provide similar services and will not perform these services itself.

§16 GewäWarranty, Liability, LimitationäLimitation

(1) Unless otherwise stipulated in these GTC including the following provisions, the warranty rights of the Principal and the liability of T&S in the event of a breach of contractual and non-contractual obligations shall be determined in accordance with the statutory provisions.

(2) T&S shall be liable for damages - irrespective of the legal grounds - within the scope of fault liability in the event of intent and gross negligence. In other cases, T&S shall only be liable - unless otherwise stipulated in para. 3 - for damages arising from the breach of a material contractual obligation (i.e. an obligation the fulfillment of which is a prerequisite for the proper performance of the contract and on the fulfillment of which the contractual partner regularly relies and may rely); in this case, however, liability shall be limited to compensation for the foreseeable, typically occurring damage. Sentences 1 and 2 shall also apply to breaches of duty by persons whose fault T&S is responsible for according to statutory provisions (e.g. vicarious agents).

(3) Liability for damages arising from injury to life, limb or health and under the Product Liability Act shall remain unaffected by the above limitation of liability. Furthermore, the aforementioned limitation of liability shall not apply insofar as T&S has fraudulently concealed a defect or has assumed a guarantee for the quality of the product.

(4) T&S is not responsible for the content provided by the client. In particular, T&S is not obligated to check the content for any legal violations. The client shall bear full responsibility for the legal security of its online store, its website or the newsletters, advertisements and advertising texts created by T&S.

(5) T&S expressly assumes no warranty or responsibility for the economic success of the services provided to the Client. This applies in particular to measures carried out within the scope of contracts for search engine optimization of websites, for the support of advertising campaigns (e.g. Google AdWords, Facebook Ads) or creation of newsletters, for the support of affiliate programs or social media campaigns.

(6) Claims resulting from the warranty obligation shall be subject to a limitation period of one year from the statutory commencement of the limitation period.

§17 Contract term and termination

(1) The term of the contract shall commence upon the Customer's signature on the contract or the offer, unless otherwise agreed therein.

(2) Unless otherwise agreed, term contracts shall have a minimum term of six months. All term contracts can be terminated at the earliest at the end of the minimum contract term. Unless otherwise agreed, term contracts shall always be automatically extended by the same term as the originally agreed minimum contract term, unless they are terminated at the respective end of the contract term within the notice period.

(3) Thenotice periodshallbe 90 days for a minimum contract term of six months or more and 180 days for a minimum contract term of twelve months or more.

(4) If, in exceptional cases, the contracting parties agree on a shorter contract term, the following provisions shall apply: In the case of a minimum contract term of one month, the notice period shall be 15 days; in the case of a minimum contract term of two months, the notice period shall be 30 days; in the case of a minimum contract term of three months, the notice period shall be 45 days; in the case of a minimum contract term of four months, the notice period shall be 60 days; and in the case of a minimum contract term of five months, the notice period shall be 70 days.

(5) Insofar as the contractual partners have agreed a special right of termination in the offer, it is clarified that this special right of termination only relates to the original minimum contract term, not to the extension of the minimum term. In such cases, the notice period shall be based on the above provisions, provided that the individually agreed special right of termination has already expired or the contract has already been extended.

(6) Unless otherwise agreed, the contract may not be terminated prematurely. The mutual right to extraordinary termination without notice for good cause shall remain unaffected. Good cause for premature termination of the contract by T & S shall be deemed to exist if, among other things

(a) the client violates essential provisions of these GTC,

(b) claims of the Customer are attached and the attachment is not lifted within two weeks,

(c) the Client is in default of payment of the monthly prices for two consecutive months or, in a period extending over more than two months, in default of payment of the fee in an amount equal to the fee for two months,

(d) the Customer suspends or refuses payment, insolvency proceedings are opened or rejected for lack of assets, or if direct debits could not be honored several times,

(e) the client expects T & S to realize its goals, unfair machinations or unlawful actions.

(7) If T & S terminates the contract extraordinarily after issuing an appropriate warning in the event of breaches of performance by the Customer or setting a deadline for subsequent performance in the event of default in payment or for other reasons, the Customer shall be obliged to pay liquidated damages in lieu of performance in the amount of the agreed remuneration for the remaining contractual term less ten percent discounting. This lump sum already includes the performance-related participation owed by the Client (§ 3 para. 5), if agreed. The Client shall be at liberty to prove that lower damages or no damages at all have been incurred.

(8) All notices of termination must be in writing. The receipt of the notice of termination by T & S shall be decisive for the timeliness of the termination.

§18 Amendment of these GTC

T & S is entitled to make changes to the service description or the GTC and other conditions. T & S shall only make such changes for good cause, in particular due to new technical developments, changes in case law or other equivalent reasons. If the change significantly disturbs the contractual balance between the parties, the change shall not be made. Otherwise, changes require the consent of the customer.

§19 Choice of law, place of jurisdiction

(1) The contractual relationship between T&S and the Customer shall be governed by the laws of the Federal Republic of Germany, excluding the provisions of international private law.

(2) The courts in Munich shall have exclusive jurisdiction for all disputes arising from or in connection with the contractual relationship between T&S and the Customer (including those concerning the existence or termination of the contractual relationship). This shall apply regardless of whether the Ordering Party has its registered office in Germany or abroad.

§20 Final provisions

(1) The Customer may only offset claims of T & S against undisputed or legally established counterclaims.

(2) The Customer may transfer the claims to which it is entitled to third parties only with the prior written consent of T & S, insofar as these are not monetary claims.

(3) The Customer shall only be entitled to assert a right of retention on the basis of counterclaims arising directly from the respective contractual relationship. In all other respects, the Client may exercise a right of retention on account of counterclaims that are undisputed or have been established by final and binding judgment.

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Team picture cloud June 2023
Team picture cloud June 2023