General Terms and Conditions (GTC)
§ 1 Scope of the General Terms and Conditions
(1) These General Terms and Conditions (hereinafter also referred to as "GTC") shall apply in their entirety to all business relations between Fischer & Habel GmbH (hereinafter referred to as "Agency") and our customers (hereinafter also referred to as "Customer"). Clients can only be entrepreneurs or companies.
(2) If the Client concludes a contract with the Agency, then he agrees to the validity of these GTC. Deviating terms and conditions, which are not expressly accepted by the Agency in writing, are not binding for the Agency. They also do not become part of the contract by silence or unconditional performance.
§ 2 Subject matter of the contract
(1) The Agency provides certain services for its clients as a marketing agency for websites, online stores, Amazon stores or similar platforms on the Internet. The Customer shall conduct sales activities on the Internet and shall commission the Agency to provide certain services during the term of the contract by concluding this contract. Unless expressly agreed otherwise in writing, the Agency shall not owe the provision of a work in this respect.
(2) In particular, the Agency can only forecast the success of certain measures based on empirical values. The Client is aware that the Agency does not owe any success in this respect.
(3) With regard to the contents of a service contract entered into with the Agency, the Agency shall be entitled to a right to determine performance pursuant to § 315 BGB.
(4) The Client is obliged to cooperate within the framework of the contractual relationship. He shall provide the necessary acts of cooperation immediately upon first request by the Agency.
§ 3 Time of the conclusion of the contract (conclusion)
(1) Text form is sufficient for the conclusion of the contract. Example: Both parties express in e-mails that they agree with the validity of the contract including the annexes, even if this contract should not have been signed. Signatures under the contract merely serve to facilitate proof.
(2) If the contract is concluded online, the click on a button with the description "Confirm" or a description with a corresponding meaning is the binding contractual acceptance of the customer to conclude a contract with the provider according to the provisions of this agreement.
§ 4 Prices and Terms of Payment
(1) Payment obligations based on services of the Agency shall be due to the Customer in the case of agreed lump-sum remunerations, depending on the agreement, either monthly for payment (retainer) or in the case of one-time scopes according to individual contractual agreement . Agreed remuneration on an hourly basis shall be due and invoiced on a monthly basis.
(2) Estimated prices stated in advance for services of the Agency on an hourly rate basis are non-binding. The approaches underlying an estimate are based on an evaluation of the scope of services of the Agency carried out to the best of its knowledge. The Agency shall inform the Client in good time in advance if, in the course of processing the order, it becomes apparent that the estimates notified to the Client on the agreed hourly basis will be exceeded if the order is processed in full.
(3) Sales tax shall be invoiced at the sales tax rate applicable at the time of performance.
(4) Invoices are payable upon receipt without deduction. If the invoice amount is not received in the Agency's bank account within 7 days of the invoice date, the Agency shall be entitled to claim default interest. The interest on arrears shall amount to nine percentage points above the base interest rate p.a. applicable at the time of calculation.
§ 5 Term of Contract and Termination
(1) The contract shall have the initial term agreed in each case and shall be extended by a further term of the same duration if the contract is not terminated with a notice period of 3 months to the end of the term, unless otherwise agreed.
(2) Any termination must be in writing to be effective. The text form (e.g. e-mail) shall be sufficient for the written form to this extent.
(3) The right of both contracting parties to terminate for good cause shall remain unaffected by the above rules.
(4) Premature / free termination rights of the Customer within the term of the contract are excluded.
(5) In the event of premature termination by the Client for good cause, the Agency's claim to remuneration shall remain unaffected.
§ 6 Assurance of the Customer
(1) The Client represents and warrants that all information provided by the Client within the scope of the business relationship is accurate and correct.
§ 7 Fulfillment
(1) The Agency shall perform the agreed services in accordance with the offer with the necessary care. It shall be entitled to use the assistance of third parties / service providers for this purpose.
(2) It is agreed that, unless otherwise explicitly agreed in writing, the Agency owes the provision of services and not the production of a work.
(3) If the Agency is prevented from providing the agreed services and if the reasons for the impediment originate from the sphere of the Client, the Agency's claim to remuneration shall remain unaffected.
§ 8 Limitation of Liability
(1) The liability of the Agency shall be excluded or limited for damages resulting from injury to life, body or health, unless these are based on an intentional or negligent breach of duty by the Agency or an intentional or negligent breach of duty by a legal representative or vicarious agent of the Agency.
(2) For other damages, the liability of the Agency is excluded or limited, unless these are based on an intentional or grossly negligent breach of duty by the Agency or an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of the Agency.
(3) The Client's obligation includes actions that become necessary and can reasonably be expected from the Client in order to prevent damage and to mitigate damage. The non-fulfillment of this obligation can be considered as contributory negligence and lead to a corresponding reduction of any claim for compensation to which the Client may be entitled (see § 254 BGB).
(4) Insofar as defects in a service provided by the Agency can be remedied, the Agency shall only be liable for damages for these defects if the Client has notified the Agency of the defects complained of in text form and the Agency has not remedied the defects within ten working days.
(5) The Client shall be responsible for its online store or its Internet presence itself, in particular also for ensuring that the Client complies with all legal obligations to provide information there. The Agency assumes no liability for this.
§ 9 No waiver
A waiver of the pursuit of a violation of the GTC may not be interpreted as a waiver of the pursuit of current or future other claims of the Agency due to legal violations of the client.
§ 10 Granting of rights of use
(1) The Agency is the sole owner and author of its ideas, drafts, designs and work results and the sole holder of all rights of use and exploitation thereof. Unless otherwise agreed, the Agency shall grant the Client a simple right of use, unlimited in terms of time and space, to ideas, drafts, designs and work results relating to the contract concluded between the Parties. The transfer of the rights of use to third parties requires the prior written consent of the Agency.
(2) The rights of use shall not pass to the Client until the agreed remuneration has been paid in full.
(3) The Agency reserves the right to make use of its right to name the author.
(4) The Agency shall be entitled to refer to the existing or former business relationship with the Client as a reference on its own advertising media and in particular on its website by stating the Client's (company) name, company logo and figurative marks. The Agency may also demonstratively display content created on behalf of the Client and product photos provided by the Client for its own advertising purposes, in particular on the Agency's website. The Client grants the Agency a simple right of use in each case.
§ 11 Consent to data processing
The Client consents and agrees that the Agency may process the Client's personal data within the scope of processing the order placed by the Client in each case. In doing so, the Agency may only process the Client's personal data on the Client's instructions. The processing of personal customer data shall be carried out in particular for the purpose of contract performance, customer communication and order processing. The Client may revoke this consent at any time without giving reasons.
§ 12 Confidentiality
The parties mutually assure each other confidentiality with regard to all business transactions and documents of the respective other party which come to their knowledge, unless these were already in the public domain. The aforementioned confidentiality obligation shall apply equally to all employees and/or co-workers who have access to the aforementioned business transactions and documents. The obligation to maintain secrecy shall apply for an unlimited period of time beyond the duration of the contract. The duty of confidentiality includes in particular that the business transactions and documents of the respective other party may not be made public or made accessible to third parties.
§13 Right of revocation
We only enter into contracts with entrepreneurs in the sense of § 14 BGB (German Civil Code). A right of withdrawal does not exist for contracts entered into by telephone with entrepreneurs.
§ 14 Non-solicitation
(1) Each party undertakes not to directly or indirectly entice away any employees of the other party during or for two years after the termination of this contract. For each case of violation of the provision in sentence 1, the violating party shall pay to the other party a contractual penalty in the amount of two gross annual salaries (including bonuses, royalties) of the respective employee who is poached by the respective party in violation of the obligation pursuant to sentence 1, whereby the gross annual salary of the respective employee in the year prior to the forfeiture of the contractual penalty shall be decisive for the calculation of the contractual penalty.
(2) For the Agency, the non-solicitation clause referred to in (1) is particularly important because the Agency has trained its employees in a time-consuming and cost-intensive manner and its employees also know considerable trade secrets of the Agency, in particular in the areas of IT and intellectual property. Any poaching of the Agency's employees would foreseeably cause the Agency considerable damage, which the other Party hereby expressly acknowledges.
§ 15 Final Provisions
(1) Amendments and supplements to this contract, including the agreement to waive this written form requirement, must be made in writing.
(2) Should any provision of this Agreement be or become invalid, the validity of the remainder of the Agreement shall not be affected thereby. The invalid provision shall be replaced by a provision that comes as close as legally possible to the intention of the parties. The same shall apply in the event of a loophole.
(3) Both parties agree on the applicability of German law.
(4) According to the will of both parties, German courts shall have international jurisdiction.
(5) To the extent permitted by law, the parties hereby agree that the Regional Court of Braunschweig shall have exclusive local jurisdiction for all disputes between the parties arising out of or in connection with this Agreement.