All contracts between business clients and placemind UG (haftungsbeschränkt) i.L., Eulerstraße 22, 13357 Berlin (hereinafter referred to as "placemind") shall be governed solely by these General Terms and Conditions (GTC). Business clients are all natural or legal persons or partnerships with legal personality who or which, when entering into a legal transaction, act in exercise of their trade, business or profession (Section 14 of the German Civil Code, BGB).
Conflicting or additional GTC of the client shall not form part of the contract. These GTC shall also apply to subsequent orders and all other contracts concluded between the parties in the future, without placemind having to draw renewed attention to their validity in each individual case.
placemind is entitled to change these GTC provided such changes are reasonable for the client. placemind shall inform the client of any proposed changes in good time via email or by post. Unless the client raises an objection within 6 weeks of receiving such notification, the changes to the GTC shall be deemed accepted. In its notification, placemind shall point out the client's right of objection as well as the legal consequences of the deadline passing.
II. Services provided by placemind
placemind provides purchase agreement services, other services and works in the areas of planning, consulting, evaluation, analysis, design and implementation of advertising in new media. The nature and scope of the service rendered or the products delivered are the result of the offer as well as placemind's technical service descriptions.
The services placemind owes are rendered with great care and diligence. However, a tangible success shall only be due from placemind if this is expressly agreed; this also applies if individual services rendered by placemind are accepted or confirmed by countersigning performance logs, time sheets or other performance acknowledgements on the part of the client.
The services offered by placemind do not include the examination of legal issues.
Any delay on the part of placemind to render agreed services shall be governed by statutory provisions; in all cases, the client is however required to submit a reminder.
III. Duty of cooperation on the part of the client
The client is obliged to support placemind in the provision of contractual services by means of appropriate acts of cooperation and in particular to provide all necessary information and documents. The client shall bring to placemind's attention unprompted any circumstances which are unknown to placemind and of relevance for service provision. The client is required, without any separate request, to examine the legal compliance of ads and other campaign content created for it and to notify placemind without delay of any violations of the law or of the rights of third parties, or of any concerns in this respect.
The client shall appoint a contact person and a deputy as fixed points of contact for all matters concerning the respective contract. They must be enabled to either make all decisions relating to the contract personally or bring them about in a timely manner. Furthermore, the client shall make available those employees whose specialist knowledge is necessary for achieving the respective contractual aim.
If the client does not fulfil its duties of cooperation and if placemind is unable for this reason to provide part or all of the service owed within the agreed time, full remuneration shall still be owed and the agreed period for service provision shall be extended as appropriate.
IV. Guarantee of ownership of rights and legal compliance, Exemption
The client guarantees that, with respect to the content it makes available to placemind for online marketing purposes, in particular texts, search terms (keywords), images and photos, it holds the respective usage rights.
Moreover, the client guarantees that placemind's use of the content referred to in Paragraph 1 as part of the contract does not violate any rights of third parties, in particular trademarks and copyrights, or otherwise violate the law.
The client shall, upon first request, exempt placemind from all third-party claims, especially from claims relating to copyright and trademark infringements, which may be lodged against placemind in connection with the exercise of the rights covered by the contract. The client must notify placemind without delay of any diminution of the rights covered by the contract. placemind is entitled to take appropriate action of its own to defend against claims by third parties or to assert its own rights. If the client intends to take action of its own, such action must be agreed on beforehand with placemind. This exemption also includes the reimbursement of the costs placemind incurs or has incurred as a result of prosecution/legal defence.
V. Duration of contract, Termination of contract
Unless otherwise explicitly stated in a particular case, the contract lasts for an indefinite period and may be terminated by either contractual partner, without giving any reasons, with a notice period of 2 months.
This does not affect the right to terminate this contract immediately for good cause.
The termination of the contractual relationship must be performed in writing. Electronic submission, e.g. via fax or email, is sufficient to fulfil this requirement of the written form, provided the copy of the signed declaration is submitted.
VI. Acquisition of usage rights
placemind grants the client all copyright and other usage rights to the results of the work shared with the client for commercial use and paid for by the client, providing such rights are appropriate for the client's contractual use of the results of the work.
The client may only make changes to copyrighted results of the work performed by placemind if these serve the contractual use and take the form of an update. The client is not permitted to carry out any further change, modification, distortion or masking - especially any which may affect placemind's moral rights or its image as a business.
The client is entitled to transfer the usage rights, in whole or in part, to subsidiaries or affiliated companies within the same group.
Unless otherwise agreed between the parties, said assignment and grant of rights is limited in terms of time, place, based on the intended use and in every other manner to the implementation of the client's respective public relations projects and activities.
The assignment and grant of rights under Paragraphs 1, 2 and 3 excludes rights held by placemind to its own planning processes, software programs and media purchasing methods which represent placemind's company-specific expertise. With regard to standardised content - i.e. content which is not made specifically for the client but made available to it in a pre-prepared or, if applicable, adapted form (e.g. templates, system components, images, layouts, fonts etc.) - upon full payment of the agreed remuneration due, placemind shall grant the client the simple (non-exclusive), spatially and temporally unlimited right to use such content for the contractually stipulated purpose. If this standardised content is sourced from third parties, then any of their existing licence conditions, which placemind shall provide to the client as part of the billing process, shall apply.
Every use of the results of the work which exceeds the above provisions requires the separate permission of placemind.
If placemind has granted the client exclusive rights of use for results of the work which are eligible for protection as a patent, a utility model, a design or a trademark, then the client is entitled to file the appropriate property right for their person or company. If in the event of withdrawal from the contract the granted usage rights have to be returned, placemind shall be entitled to demand that the client transfer the property right step by step in return for the reimbursement of the costs incurred for this.
If placemind uses services provided by third parties, then it shall acquire the usage rights covering the results of their work to the extent of the above provision and transfer these to the client accordingly. If in individual cases the rights cannot be acquired or their acquisition would involve disproportionately high costs, then placemind shall inform the client of this and proceed according to its instructions. The client shall bear any extra costs which may arise.
VII. Reference documents
placemind reserves the right to add its name or a signature as the author of the results of the work it produces in an appropriate place (e.g. in a website's legal notice), provided this does not affect the client's interests in terms of presentation.
Furthermore, placemind reserves the right to use the results of the work produced for the client, in whole or in part, for its own presentation and reference purposes, including a list of references on the internet, naming the client and, if appropriate, including a link to the client's website. The client grants placemind free of charge a corresponding simple usage right covering content connected to the results of the work provided by placemind, so that placemind can carry out corresponding self-promotion with said results of its work.
VIII. Payment terms
All prices indicated by placemind are in EUROS and exclude statutory taxes.
Remuneration payable to placemind is due 10 days after receipt of a proper invoice. The date of payment is determined by when payment is received by placemind. Physical objects which placemind delivers to the client in fulfilment of a purchase contract or a contract to produce a work remain the property of placemind until full payment.
Any offset against counterclaims on the part of the client, or the withholding of payments due to such claims, is only permitted where the counterclaims have been accepted, are undisputed or are legally binding.
placemind is entitled to only perform outstanding services in return for advance payment or payment of a security if, after conclusion of the contract, placemind becomes aware of circumstances which may substantially reduce the client's creditworthiness, and as a result of which placemind's payment of outstanding debts by the client from the respective contractual relationship (including from other individual orders subject to the same framework agreement) is endangered.
Any claims against placemind may only be assigned to third parties with the consent of placemind. This does not affect the provision of Section 354a of the German Commercial Code (HGB).
IX. Guarantee in the application of purchase agreement law
If placemind provides services for the client which are subject to sales law (e.g. sale of software, web design contract), the client is required to inspect the products for obvious defects. The client must inform placemind of any such defects without delay after receipt of the goods by exactly stating the alleged defect in at least text form (e.g. letter, fax, email). In the case of defects which are not obvious, the client must inform placemind of any such defects within two weeks of their discovery, exactly stating the alleged defect and providing this information at least in text form (e.g. letter, fax, email). In the case of a violation of this obligation to examine the goods and submit any complaints, the goods shall be deemed approved despite the respective defect.
If there is a defect, the client shall have its statutory defect warranty rights, unless otherwise agreed upon in individual cases. placemind shall then be obliged and entitled, within a reasonable period, to provide the client with either a repair or a replacement by placemind.
In derogation from Section 438 Para. 1 No 3 of the BGB, the limitation period is one year from the delivery of the goods. However, the statutory limitation period is not restricted if placemind fraudulently concealed the defect from the client or guaranteed the quality of the goods, or if the defect lies in the right in rem of a third party due to which the return of the goods may be demanded. Furthermore, this limitation of the statutory limitation period does not apply to damages incurred by the client based on an injury to life, limb or health which are attributable to placemind or have been culpably caused by placemind, and in the case of grossly negligent or intentional damage caused by placemind, and in the case of recourse claims in accordance with Sections 478, 479 of the BGB. This does not affect the limitation periods of the German Product Liability Act.
Furthermore, claims by the client for damages or futile expenses are limited according to Section XII (Liability).
X. Guarantee in the application of law governing contracts to produce a work
If the subject of the contract with placemind is a work whose success lies in the production of a thing, maintenance of a thing, alteration of a thing or in the provision of planning or monitoring services, then legislation governing contracts to produce a work (Sections 631 ff. of the BGB) shall apply.
The client is obliged to accept the work prepared in accordance with the contract and cannot refuse acceptance due to minor defects.
If the work is defective, placemind shall, at its discretion, then be obliged and entitled to provide the client with either a repair or a replacement within a reasonable period. If this subsequent performance within a reasonable period fails, the client must set another reasonable period for an additional attempt at subsequent performance. If subsequent performance finally fails after this reasonable period set by the client has passed, then once the deadline has passed the client shall have the right to reduce the remuneration or, in the case of substantial defects, terminate the contract; withdrawal from the contract is excluded.
The limitation period for claims by the client due to material defects of the work is one year from acceptance of the work, unless placemind has fraudulently concealed the defects from the client or guaranteed the quality of the work. Furthermore, this restriction to the limitation period does not apply to claims by the client for damages based on an intentional or grossly negligent breach of duties by placemind or otherwise on intentional or grossly negligent conduct by a legal representative or a vicarious agent of placemind, and nor does it apply to damages resulting from injury to life, limb or health based on an intentional or negligent breach of duties by placemind or otherwise on intentional or negligent conduct by a legal representative or vicarious agent of placemind; this does not affect the limitation periods of the German Product Liability Act.
XI. Application of service contract law
If placemind provides services for the client which include in particular front-end services, digital marketing, website hosting, maintenance and care of software and/or websites, training and coaching, then such services shall be subject to service contract law as well as legislation governing the non-gratuitous management of the affairs of another pursuant to Sections 675, 611 ff. of the BGB.
placemind shall endeavour to achieve the contractually stipulated purpose with the due diligence of a prudent businessman. placemind accepts no responsibility for the achievement of any results or objectives the client may expect.
The client is obliged to reimburse placemind for its expenses pursuant to Section 670 of the BGB, provided these have not already been compensated for in the remuneration and unless otherwise agreed.
Claims by the client for damages are excluded. This does not include claims by the client for damages arising from injury to life, limb or health or from the violation of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duties by placemind or its vicarious agents. Essential contractual obligations are those whose fulfilment makes possible the correct execution of the contract in the first place and on whose compliance the contractual partner may regularly rely.
In the case of a violation of essential contractual obligations, placemind shall only be liable for foreseeable damage typical of this type of contract, if said damage was caused by ordinary negligence, unless there are claims for damages by the client arising from injury to life, limb or health.
placemind's liability under the German Product Liability Act and other mandatory liability regulations is not affected by the foregoing limitations and exclusions of liability.
The foregoing exclusions and limitations of liability apply to the same extent to the legal representatives, employees and other vicarious agents of placemind.
XIII. Privacy, Data backup
The client warrants that all personal data submitted to placemind by it, or by third parties at its request, have been collected and processed in compliance with the relevant data protection rules (in particular the Federal Data Protection Act) and that any necessary consent has been obtained from the persons affected by the processing of the data, and that the contractual use and processing of the data on the part of placemind does not exceed the scope of the consent given by the persons concerned.
It is up to the client to back up both data and programs before submitting them to placemind, in order to allow a recovery in the event of a loss of data.
The parties mutually agree to keep secret any information and documents made available to them as part of this business relationship, or submitted to them in this context by third parties, which are marked as “confidential” or which are recognisable, based on other circumstances, as business or trade secrets of the respective contractual partner, for the duration of this contract and after termination of the contract, and - unless required for the achievement of the purpose of the contract - to neither record, store, nor divulge such information and documents, and further not to exploit them or make them available to unauthorised persons. In this sense, confidential information is in particular remuneration agreements as well as other ancillary and special agreements which are related to payable fees.
The obligation in Paragraph 1 to maintain confidentiality also applies to ideas, concepts and designs using text and/or images which are put forward as part of a presentation by placemind, if and for as long as the client has not commissioned and paid for such services.
XV. Place of jurisdiction, Applicable law, Severability clause
If the client is a merchant, a legal entity under public law or a special fund under public law, or if it has no general jurisdiction in the Federal Republic of Germany, then the place of jurisdiction for any disputes arising from the business relationship between placemind and the client shall, at the discretion of placemind, either be Berlin or where the client is registered. In such cases, however, Berlin is the exclusive place of jurisdiction for claims asserted against placemind. This provision does not affect mandatory statutory provisions about exclusive places of jurisdiction.
The law of the Federal Republic of Germany shall apply exclusively, excluding uniform international law.
If the contract or these GTC contain any loopholes, then in order to eliminate a loophole, those legally valid provisions will be considered agreed upon which the contractual partners would - based on the economic objectives of the contract and the purpose of these GTC - have agreed on had they been aware of the loophole.
Supplementary provisions: Online ads | SEA
I. Scope of application
These additional conditions form part of the contract if the client has commissioned placemind to place online ads, such as Facebook ads and/or search engine advertising (SEA).
II. Services provided by placemind
placemind conducts online advertising or SEA campaigns for the client with the aim of raising the client's profile and generating more visitors to the client's website.
The outcome of the campaigns referred to in Paragraph 1 depends in part on factors which placemind cannot influence. The parties are therefore agreed that no achievement of particular success is owed.
III. Duty to monitor and cooperate on the part of the client
The client must inform placemind of the account number, if available, of the SEA program used by the client.
Existing access data for an account belonging to the client shall be submitted by the client to placemind if this is necessary to fulfil the contract, or unless explicitly otherwise agreed in individual cases. In any case the client remains obliged to regularly check access to the account and the account's performance independently, and if necessary to create account backups.
If placemind provides the client with reports, these must be checked by the client without delay. In particular, the client must examine whether the content or keywords used by placemind are identical or confusingly similar to designations used by competitors (companies, brands, company logos, signs and labels). If the client notices that the content or keywords used by placemind violates the law or the rights of third parties, it must notify placemind of this without delay.
The client must make any agreed budget available. The client is aware that, depending on the behaviour of search engine users and the demand for particular keywords, the budget will sooner or later be depleted. It is then up to the client to make a new budget available.
The client is aware that placemind will create links to the client's website and its subpages. The client is responsible for ensuring the accessibility of the website. Should there be any changes to the website URLs, the client must notify placemind of these without delay.
Supplementary provisions: SEO
I. Scope of application
These additional conditions form part of the contract if the client has commissioned placemind to conduct search engine optimisation (SEO).
II. Services provided by placemind
placemind overhauls websites covered by the contract with the aim of improving their position in the organic search results of search engines.
The client is aware that SEO is subject to constant change. The success of SEO depends on partially unforeseeable changes to search engine algorithms and activities by third parties which also practise SEO. The parties are therefore agreed that no ac hievement of particular success is owed.
III. Duty of cooperation on the part of the client
The client is obliged to check the content published by placemind on the client's website, in particular whether the content violates the law or the rights of third parties. Should the client become aware of any violations in this respect or if there are at least doubts, it must inform placemind of this without delay.