General Terms & Conditions

German version to be found here: twistundschirm.com/agb / in case of contradictions, the German version shall prevail.

Die deutsche Version ist hier zu finden: twistundschirm.com/agb / bei Widersprüchen ist die deutsche Fassung maßgebend.

§ 1 General, Scope

(1) All deliveries, services and offers of Twist & Schirm Social Media GmbH, Leopoldstr. 31, 80802 Munich, Germany (hereinafter “T&S”) are provided exclusively on the basis of these General Terms and Conditions (hereinafter these “GTC”). They form part of all contracts that T&S concludes with its contractual partners (hereinafter the “Client”) regarding the deliveries or services offered by T&S (T&S and the Client hereinafter each individually a “Contracting Party” and jointly the “Contracting Parties”). These GTC apply only if the Client is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.

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

(3) These GTC apply exclusively. Deviating, conflicting or supplementary terms and conditions of the Client or of third parties shall only become part of the contract if and to the extent that T&S has expressly agreed to their validity in writing. Terms and conditions of the Client or third parties shall therefore not apply, subject to such express consent, even if T&S does not expressly object to their validity in the individual case or refers to the exclusive validity of these GTC. The requirement of consent applies in every case. In particular, any reference by T&S to a letter that contains the Client’s or a third party’s terms and conditions or refers thereto, as well as performance or delivery without reservation with knowledge of the Client’s or a third party’s terms and conditions, shall not constitute consent to the validity of such terms and conditions.

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

(5) Where written form is required in these GTC, § 126 BGB shall generally apply. To comply with the form requirement, it shall be sufficient – unless individual provisions of these GTC expressly provide otherwise – to transmit a copy of the relevant document by telecommunication, in particular by fax or PDF copy by e-mail, provided that the copy of the signed declaration(s) is transmitted.

(6) Both Parties agree that electronic signatures on all contracts and offers are legally binding.

(7) References to the applicability of statutory provisions are for clarification purposes only. 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 is an online marketing agency that supports clients in all areas of digital marketing, social media marketing and search engine marketing. The aim of the cooperation with the Client is to bring visitors to the Client’s websites and/or webshops and to increase access to the Client’s websites (together “Traffic”).

(2) T&S provides the Client with a comprehensive range of services. The specific services owed are set out in the individual offer agreed between the Contracting Parties from T&S. That offer also regulates the remuneration, the term and any further modalities of the cooperation.

(3) The Client is aware that, given the nature of the services owed, a specific success cannot be guaranteed. In particular, the Client cannot demand that T&S achieve certain sales figures, views, redirects or click numbers. The Contracting Parties agree that the services provided by T&S are of a service-contract nature (Dienstvertrag).

§ 3 Offer, Conclusion of Contract

(1) The services displayed, advertised and offered on the T&S website or in other advertising media or on other platforms do not constitute binding offers. This also applies if the Client is provided with product samples, catalogues, technical documentation, other product descriptions, documents, demo accesses or examples of T&S services (such as shops, websites, newsletters, graphics or texts) – including in electronic form – insofar as such provision is not part of an individual offer.

(2) Individual offers from T&S are valid and may be accepted for a period of one month from receipt of the offer by the Client, unless the offer provides otherwise. T&S may accept orders or commissions from the Client within two weeks of their receipt.

(3) Information provided by T&S regarding the subject of the delivery or service and related representations are only approximately authoritative, unless exact conformity is required for use for the contractually intended purpose. They do not constitute guaranteed characteristics but descriptions or designations of the delivery or service. Trade-typical deviations and deviations required by legal provisions or representing technical improvements, as well as the replacement of components with equivalent parts, are permissible, provided they do not impair usability for the contractually intended purpose.

(4) The contractual relationship between T&S and the Client is governed by the contract concluded in text form regarding the provision of a service by T&S, including these GTC. The requirement of text form is satisfied by e-mail. The contract fully reflects all agreements between the Contracting Parties concerning the subject matter. Side agreements and supplements to the concluded contract require at least text form (e.g. e-mail), unless otherwise provided in these GTC. § 1 para. 4 of these GTC remains unaffected.

§ 4 Prices, Payment Terms, Due Date

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

(2) All price information is in euros plus statutory VAT and any packaging costs. Any expenses incurred in the Client’s interest (e.g. registration and filing fees) will be reimbursed separately. Where billing is based on hourly rates, the estimated time required stated in advance for provision of the service is based on estimates; the decisive factor is the actual working time incurred.

(3) For term contracts, T&S invoices its services monthly in advance at the beginning of each month. For individual assignments, change requests and additional services, T&S generally invoices before providing the service. T&S is entitled to render services only against partial or full advance payment or provision of security; this applies in particular to orders of greater scope and workload, where the Client has been in payment default in the past, or where T&S becomes aware after conclusion of the contract of circumstances that are likely to substantially reduce the Client’s creditworthiness and jeopardise payment of T&S’s outstanding claims by the Client under the respective contractual relationship.

(4) The Contracting Parties generally agree a monthly flat fee for the contractual services and, where applicable, a one-off flat setup fee, the amount of which is specified in the individual offer. The monthly flat fee is payable monthly in advance on the first day of each month. Otherwise, T&S invoices are due for payment without deduction no later than seven (7) days after the invoice date. The date of payment is the date on which the amount is received by T&S. Payment by cheque is excluded.

(5) Where agreed, the remuneration increases by a variable performance-based share. This performance fee is determined by the sales achieved during the relevant assessment period (usually one month) of the Client’s online shop or other sales activities, or by the leads generated by T&S. For the relevant revenue/leads, all revenues/leads measured in the ad account/the advertising platform are decisive, not only the campaigns managed by T&S within the ad account/the advertising platform, but all active campaigns during the service period. For Meta Ads & TikTok Ads, the 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 any newly introduced model, whichever model reports the highest revenue/the most leads. For Google Ads, the revenue/leads are calculated according to the attribution model “Last Click, First Click, Linear, Time Decay, Position Based, Data Driven” (each with the largest attribution window) or any newly introduced model, whichever model reports the highest revenue/the most leads. If 3rd-party tracking solutions are used (e.g. Google Analytics, Google Data Studio, Triple Whale, Hyros), the measured revenue/leads of the model showing the higher revenue/the higher leads between the advertising platform and the 3rd-party solution are used as a basis. For other advertising platforms (including Klaviyo), the longest attribution window is used, as well as the attribution model that reports the highest revenue/the most leads. Remuneration for this performance-based share for increased traffic is invoiced to the Client after the end of the respective period (usually one month) and is payable without deduction within seven (7) days of the invoice date. The date of payment is the date on which the amount is received by T&S.

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

(7) If payment by SEPA direct debit has been agreed, the Client undertakes to ensure sufficient funds in the account. Costs arising from non-payment or chargeback of the direct debit shall be borne by the Client. In both cases, the Client automatically falls into default without the need for a separate payment reminder. Because a chargeback can result in the closure of T&S’s Stripe account, this is taken extremely seriously. In the event of a chargeback, a contractual penalty of EUR 5,000 becomes due; further claims for damages are reserved. In the event of a chargeback, T&S is released from its service obligations until payment by bank transfer is received by T&S.

(8) If the Client is in default with payment of the monthly fee for two consecutive months or, within a period of more than two months, with an amount equal to two monthly fees, T&S is entitled to terminate the contract without notice.

§ 5 Change Requests, Additional Services

(1) The scope, type and quality of the deliveries and services are determined by the signed contract, otherwise by the offer or order confirmation from T&S. Change requests concerning T&S’s contractually agreed services and additional services going beyond the agreed scope of services may also be requested and submitted by T&S by e-mail.

(2) T&S may refuse change requests or additional services if providing such services would involve unreasonable effort. T&S may accept or reject change requests or additional services within two weeks of their receipt.

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

(4) Fulfilment of change requests or provision of additional services is subject to additional remuneration on an hourly basis, unless the Contracting Parties agree a fixed price for the changes or additional services. If a fixed price was agreed for T&S’s original services, T&S will inform the Client in advance of the hourly rate applied and the expected additional costs. If an hourly rate has already been agreed for T&S’s original services, this hourly rate shall also apply to the changes and additional services. In this case the Client will only be informed of the expected duration upon request.

(5) Where billing is on an hourly basis, the estimated time required stated in advance for the provision of the change requests or additional services is based on estimates. The decisive factor is the actual working time incurred.

§ 6 Client’s Duty to Cooperate

(1) A key factor for T&S’s service provision is the Client’s cooperation. The Client shall provide T&S with the data and documents necessary for the marketing services free of charge.

(2) After receiving appropriate information from T&S, the Client shall take the measures necessary for calculating traffic, in particular the technical measures required for measurement.

(3) The online marketing or marketing services are carried out in close coordination between the Client and T&S. If the Client does not agree with the way work is carried out or the provision of services in material respects, the Client must notify T&S without delay. Otherwise, the way work is carried out and the provision of services shall be deemed to be in accordance with the contract. Where online marketing or marketing services must be approved by the Client or where there is a statutory or agreed obligation to accept services, the Client shall promptly declare approval or acceptance in writing as soon as the services have been rendered essentially in accordance with the contract. If approval or acceptance is not declared within five (5) working days after delivery of the service, the respective service shall be deemed approved or accepted.

(4) The Client is obliged, upon conclusion of the contract, to grant T&S all rights necessary for the accounts with the relevant online services and advertising accounts (in particular social media platforms, websites, webshops). In part, the Client must provide the access data (username, password etc.) where these are required for performance of the contractually owed services. Insofar as disclosure of passwords is necessary to fulfil the contractual obligations, T&S will explicitly request the Client to transmit them.

(5) If the Client withdraws T&S’s access to the online services and advertising accounts, the Client shall promptly send to T&S the sales data for the entire month concerned together with evidence, which are required to calculate the performance-based share pursuant to § 4 para. 5 of the GTC (number of orders, revenue, leads etc.). If the Client fails to comply with this obligation, T&S is entitled to use the average of the last three months in which access was still available as the basis for calculation and to calculate the performance-based share on this basis until the Client again grants T&S access to the online services and advertising accounts. If advertising in the ad account has been interrupted, T&S is entitled to use as revenue the average of the last three months before access was first withdrawn as the basis for calculation and to calculate the performance-based share on this basis until the end of the contract term. If the contractual relationship has not existed for three months at that time, the average revenue for the term so far shall be used as the basis.

(6) If the Client fails to comply with its duty to cooperate within a reasonable period despite being requested to do so by T&S, T&S shall be released from its service obligations for this period. In this case, the Client remains obliged to pay the agreed prices. If the respective online marketing service cannot be provided due to failure to comply with the duty to cooperate, or if the Client does not fulfil the duty to cooperate after being requested to do so by T&S, T&S may withdraw from the contract or terminate the contract for the future, subject to a reasonable grace period, and claim damages for non-performance.

§ 7 Service Provision, Deadlines, Delays

(1) Within the framework of what has been contractually agreed, T&S is free to determine the content, manner, scope, timing and place of service provision. T&S may also use freelancers and other subcontractors for service provision.

(2) The deadlines stated in the signed contract – otherwise those in the offer or order confirmation from T&S – are binding. The deadlines stated there must be complied with by both Contracting Parties. The Client is obliged to provide as soon as possible the information, documents and data required for T&S’s service provision and to perform any other cooperation actions required on its part.

(3) T&S is not responsible for service delays due to force majeure and circumstances within the Client’s sphere of responsibility and is entitled to postpone provision of the affected services by the duration of the hindrance plus a reasonable start-up and planning period. T&S will notify the Client of delays in service provision due to force majeure. In the case of a minimum contract term, delays at the beginning or during the term of a contract that are attributable to the Client shall extend the minimum contract term by the duration of the delay.

§ 8 Acceptance, Corrections

(1) Where a specific result is owed under the contract by way of exception, the Client is obliged, upon request by T&S, to accept or request corrections to the services provided by T&S, in particular drafts and interim results, within two weeks of receipt of the request. Acceptance may not be refused for design or artistic reasons. Within the framework of what is contractually agreed, T&S has creative freedom.

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

§ 9 Retention of Title

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

§ 10 Place of Performance

The place of performance for all obligations arising from the contractual relationship is Munich, unless otherwise specified. If T&S also owes installation, the place of performance is the location where the installation is carried out.

§ 11 Copyright, Rights of Use, Infringement of Third-Party Rights

(1) All copyrights, neighbouring rights and other rights to the Client’s website/online shop and its content remain with the Client. However, for the duration of the contract and territorially and materially to the extent necessary for performance of the contract, the Client grants T&S the simple rights of use required for contractual use of the website/online shop, in particular copyrights and neighbouring rights. The right of use includes in particular the right of reproduction, distribution, making available to the public and adaptation. The right is non-transferable but includes the right to sublicense the aforementioned rights of use within the framework of this contract to third parties engaged for performance and to grant search engine operators and social media platforms the rights of use required for marketing within the scope of contract performance.

(2) T&S retains ownership or copyright in all offers and cost estimates it issues and in drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids provided to the Client in the context of an offer. Without T&S’s express consent, the Client may not disclose these items as such or in terms of content to third parties, make them public, use them themselves or through third parties, or reproduce them. At T&S’s request, the Client shall return these items in full to T&S and destroy any copies made if they are no longer needed in the ordinary course of business or if negotiations do not lead to conclusion of a contract. Excluded from this is the storage of electronically provided data for the purpose of standard data backup.

(3) The services provided by T&S are legally protected. Copyrights, any patent rights, trademark rights and other intellectual property rights are held exclusively by T&S.

(4) For products created by T&S for the Client, the Client acquires a simple, non-transferable right, unlimited in time and territory, to use the created products in accordance with the contractual purpose. The Client is only entitled to use the services provided by T&S in its own business and for its own purposes and may not pass them on or resell them to third parties without T&S’s prior written consent; excluded from this is the distribution of products that are intended by their nature to be disseminated to third parties (e.g. newsletters). If the Client violates this or fails to meet its payment obligations under § 3 of these GTC even after a reasonable grace period, 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 use of its protected works.

(5) The Client warrants that it holds all rights to alter and publish texts, fonts, images and all other copyrighted material that it provides to T&S for use in its advertising or online shop. The Client further warrants that it is entitled to transfer the rights of use in such material to T&S so that T&S can publish such material on its website or online shop in the Client’s name. T&S shall not be liable for any infringement of property, copyright, usage or other intellectual property rights of third parties in the material provided by the Client.

(6) If the Client is subject to special labelling obligations when using copyrighted or otherwise protected material (e.g. licensing requirements for so-called stock images), it must expressly inform T&S and issue appropriate instructions.

(7) If T&S does not receive further information on the material submitted, it may assume that this material can be freely used for the Client. This includes modifying, supplementing or shortening texts, cropping, supplementing, altering or editing images and other copyrighted or otherwise protected material in the Client’s interest and publishing it in the Client’s name without indication of sources.

(8) If third parties assert claims against T&S on the grounds that the Client’s website/online shop or their use by search engine operators, social media platforms or other users violates statutory provisions and/or that the website/online shop infringes their rights, the Client shall indemnify T&S on first demand against all such third-party claims and reimburse any further costs and damages, in particular indemnify T&S against the costs of necessary legal defence. This does not apply if the Client is not responsible for the infringement of third-party rights or statutory provisions. Within reasonable limits, the Client is obliged to support T&S in its legal defence against third parties by providing information and documentation.

§ 12 Data Protection, Password Security

(1) T&S is entitled to store electronically the data relating to the respective assignment and to process and use such data for operational purposes in accordance with statutory provisions.

(2) Disclosure of data to third parties is only permitted insofar as this is (for example, for domain registrations or similar) the subject of the contract or required for its performance, or where disclosure is required under statutory provisions or official orders.

(3) The Contracting Parties are obliged to transmit passwords, personal data and other highly sensitive information only in a secure manner.

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

§ 13 Data Processing on Behalf

(1) Insofar as T&S processes personal data of the Client on its instructions and the scope of processing requires conclusion of a data processing agreement pursuant to Art. 28 GDPR, the following provisions apply.

(2) The subject matter and duration of the agreement arise from the individual contract or offer text and the general terms from § 14 “Minimum Contract Term and Notice Period for Term Contracts”.

(2 – second) T&S processes personal data exclusively within the scope of the agreements made and in accordance with the Client’s instructions and applicable laws. T&S does not use the data provided for processing for any purpose other than that intended by the Client. If the Contractor believes that an instruction from the Client violates data protection provisions, it must inform the Client immediately.

(3) T&S is obliged to comply with statutory data protection provisions and not to disclose or expose to access by third parties any information obtained from the Client’s area. Furthermore, T&S shall oblige all persons entrusted by it with processing and fulfilling this contract (hereinafter “employees”) to confidentiality pursuant to Art. 28 para. 3 lit. b GDPR.

(4) T&S shall organise its internal operations in such a way as to meet the specific requirements of data protection. T&S undertakes to take all appropriate technical and organisational measures to adequately protect Client data pursuant to Art. 32 GDPR and to maintain such measures for the duration of data processing.

(5) In the event of disruptions, suspected data protection breaches or breaches of contractual obligations, suspected security-relevant incidents or other irregularities in the processing of Client data, T&S shall notify the Client without delay. In such cases, T&S shall support the Client, within reasonable limits, in fulfilling its obligations to investigate, remedy and inform.

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

(7) The Client is entitled to regularly verify compliance with the provisions of this agreement, in particular implementation and compliance with the technical and organisational measures contained herein. For this purpose, it may, for example, obtain information from T&S, inspect certificates from experts, certifications or internal audits, or inspect T&S’s technical and organisational measures in person or through a knowledgeable third party during normal business hours, provided that such third party is not in competition with T&S. The Client shall carry out audits only to the necessary extent and take appropriate account of T&S’s operational processes. The Contracting Parties shall agree in good time on the time and type of inspection.

(8) The contractually agreed services are performed with the involvement of subcontractors (e.g. newsletter systems such as CleverReach, Emarsys or other advertising systems such as Google AdWords). T&S is authorised, within the scope of its contractual obligations, to enter into further subcontracting relationships with subcontractors (“sub-processor relationships”). T&S shall notify the Client of this without delay. T&S is obliged to carefully select subcontractors in terms of their suitability and reliability. When engaging subcontractors, T&S must bind them in accordance with this agreement and ensure that the Client can also exercise its rights under this agreement (in particular inspection and control rights) directly against the subcontractors. If subcontractors in a third country are to be engaged, the Contractor must ensure that an adequate level of data protection is guaranteed at the respective subcontractor (e.g. by concluding an agreement based on the EU standard contractual clauses). The Contractor shall provide the Client, upon request, with evidence of conclusion of the aforementioned agreements with its subcontractors.

(9) T&S supports the Client with appropriate technical and organisational measures in fulfilling the Client’s obligations under Art. 12–22 and 32 and 36 GDPR. If a data subject asserts rights such as access, rectification or erasure of their data directly against T&S, T&S shall not respond independently but shall refer the data subject to the Client without delay and await its instructions.

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

(11) T&S stores all data exclusively in a secure, GDPR-compliant cloud storage and on encrypted and password-protected end devices. Operating systems and software used are kept up to date and antivirus software is installed on all devices used. All T&S employees are trained in potential risks and their prevention. Documentation required by the GDPR can be inspected upon request. T&S assures that it can at any time provide information about all storage locations of personal data and their copies in its systems.

§ 14 Confidentiality, Return of Documents

(1) The Contracting Parties shall treat as confidential all trade secrets, including the content of this contract, and any other information of the other Party designated as confidential (hereinafter “Confidential Information”). The receiving Party (“Recipient”) shall treat 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 fact of the conclusion of this contract and the business relationship between the Contracting Parties itself. Disclosure of the business relationship is therefore prohibited to the Contracting Parties, regardless of whether it takes place online or offline, for example on public portals, websites, media platforms, social media channels or review platforms.

(3) Use of Confidential Information is limited to use in connection with this contract. Without the prior consent of the disclosing Party, Confidential Information may not be passed on to third parties. Consents must be in writing. Affiliated companies of the Parties and advisors bound to secrecy by law are not deemed third parties within the meaning of this paragraph.

(4) Where applicable statutory obligations so require, the Recipient is also entitled to disclose and pass on Confidential Information. Where legally permissible, the Recipient shall inform the disclosing Party of the disclosure of Confidential Information in advance.

(5) The Contracting Parties shall impose on their employees or third parties to whom they pass on Confidential Information an obligation to treat such information confidentially within the scope of the respective subcontractor or employment relationship and to ensure that the duty of confidentiality continues beyond the end of the respective subcontractor or employment relationship, unless a corresponding general duty of confidentiality already exists.

(6) Exempt from the duty of confidentiality are information that

a) were already generally known at the time of contract conclusion or subsequently become generally known without violation of the confidentiality obligations contained in this contract;

b) were developed by the Recipient independently of this contract; or

c) were received by the Recipient from third parties or from the disclosing Party outside this contract without a duty of confidentiality.

The burden of proof for the existence of the exceptions referred to in this paragraph lies with the Party invoking the exception.

(7) Upon termination of this contract, the Contracting Parties shall, at the request of the other Party, return or delete Confidential Information of the other Party in their possession. Excluded from this are Confidential Information for which a longer statutory retention period applies and data backups within the framework of customary backup processes.

(8) The obligation to maintain confidentiality applies for the term of this contract and for a period of three (3) years after its termination.

(9) T&S is entitled to use know-how, such as ideas, concepts, methods and expertise, that is developed or disclosed in the course of performing the contract and stored in the memory of persons used by T&S to provide services. This does not apply insofar as this would infringe industrial property rights or copyrights of the Client. The obligation to maintain confidentiality remains unaffected.

(10) For each culpable breach by the Client, its employees, advisors, subcontractors or other third parties engaged by it of the obligations set out in this § 14 of these GTC, the Client shall pay T&S a contractual penalty of EUR 6,000. In the case of a continuing breach of this agreement, the Client undertakes to pay a further contractual penalty of EUR 500 to T&S for each additional day on which 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 otherwise agreed in the individual contract, the Client grants T&S exclusivity for the contract term or for the period during which T&S provides the online marketing or marketing services, i.e. the Client shall not commission any other company to provide similar services and shall not provide such services itself.

§ 16 Warranty, Liability, Limitation

(1) Unless otherwise provided in these GTC, including the following provisions, the Client’s warranty rights and T&S’s liability for breaches of contractual and non-contractual obligations are governed by statutory provisions.

(2) T&S is liable for damages – regardless of the legal basis – under fault-based liability in cases of intent and gross negligence. In other cases – insofar as not otherwise regulated in para. 3 – T&S is only liable for damages arising from breach of a material contractual obligation (i.e. an obligation the fulfilment of which enables proper performance of the contract in the first place and on the observance of which the Contracting Party regularly relies and may rely); in such cases liability is limited to compensation for foreseeable, typically occurring damage. Sentences 1 and 2 also apply in the event of breaches of duty by persons whose fault T&S is responsible for under statutory provisions (e.g. vicarious agents).

(3) Liability for damages arising from injury to life, limb or health and under the Product Liability Act remains unaffected by the above limitation of liability. The foregoing limitation of liability also does not apply where T&S has fraudulently concealed a defect or assumed a guarantee for the quality of a product.

(4) T&S is not responsible for content provided by the Client. In particular, T&S is not obliged to check content for possible legal violations. The Client bears full responsibility for the legal compliance of its online shop, its website or 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 for the Client. This applies in particular to measures taken under contracts for search engine optimisation of websites, management of advertising campaigns (e.g. Google AdWords, Facebook Ads) or creation of newsletters, management of affiliate programmes or social media campaigns.

(6) Claims arising from warranty obligations are 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 begins with the Client’s signature on the contract or offer, unless otherwise agreed there.

(2) Term contracts have a minimum term of six months unless otherwise agreed. All term contracts may be terminated at the earliest at the end of the minimum term. Term contracts are automatically extended, unless otherwise agreed, by the same period as the originally agreed minimum term if they are not terminated at the end of the respective contract term within the applicable notice period.

(3) The notice period is 90 days for a minimum term of six months or more, and 180 days for a minimum term of twelve months or more.

(4) If, by way of exception, the Contracting Parties agree on a shorter contract term, the following provisions apply: for a minimum term of one month, the notice period is 15 days; for a minimum term of two months, the notice period is 30 days; for a minimum term of three months, the notice period is 45 days; for a minimum term of four months, the notice period is 60 days; and for a minimum term of five months, the notice period is 70 days.

(5) Where the Contracting Parties have agreed a special right of termination in the offer, it is clarified that this special right of termination relates only to the original minimum term and not to any extension of the minimum term. In such cases, the notice period is governed by the provisions above where the individually agreed special right of termination has already lapsed or the contract has already been extended.

(6) Early termination of the contract is not possible unless otherwise agreed. The mutual right to extraordinary termination without notice for good cause remains unaffected. Important reasons for early termination of the contract by T&S include, among others, where

(a) the Client breaches material provisions of these GTC,

(b) the Client’s claims are attached and the attachment is not lifted within two weeks,

(c) the Client is in default with payment of the monthly price for two consecutive months or, within a period of more than two months, with an amount equal to two monthly payments,

(d) the Client suspends or refuses payment, insolvency proceedings are opened or rejected due to lack of assets, or direct debits could not be honoured multiple times,

(e) the Client expects T&S to use unfair practices or unlawful procedures to achieve its goals.

(7) If T&S terminates the contract, after giving a corresponding warning in the event of performance breaches by the Client or after a grace period for subsequent performance in the event of payment default or for other reasons, for cause, the Client is obliged to pay lump-sum compensation in lieu of performance equal to the agreed remuneration for the remaining contractual term minus a discount of ten percent. This lump sum already includes any performance-based share owed by the Client (§ 3 para. 5), where agreed. The Client is free to prove that less or no damage has occurred.

(8) All notices of termination must be in writing. For compliance with notice periods, receipt of the notice by T&S is decisive.

§ 18 Amendments to these GTC

T&S is entitled to amend the service description or these GTC and other conditions. T&S will implement such changes only for good reason, in particular due to new technical developments, changes in case law or other equivalent reasons. If such amendments significantly disturb the contractual balance between the Parties, the amendment shall not be made. Otherwise, changes require the Client’s consent.

§ 19 Choice of Law, Place of Jurisdiction

(1) The contractual relationship between T&S and the Client is subject to the law of the Federal Republic of Germany, excluding the rules of private international law.

(2) The courts in Munich have exclusive jurisdiction for all disputes arising from or in connection with the contractual relationship between T&S and the Client (including disputes relating to the existence or termination of the contractual relationship). This applies regardless of whether the Client is domiciled in Germany or abroad.

§ 20 Final Provisions

(1) The Client may only set off claims of T&S with undisputed or legally established counterclaims.

(2) The Client may transfer claims to third parties only with T&S’s prior written consent, unless such claims are monetary claims.

(3) The Client may assert a right of retention only in respect of counterclaims arising directly from the respective contractual relationship. Otherwise, the Client may exercise a right of retention only where the counterclaims are undisputed or have been legally established.