1. Subject of the contract — General
1.1. The following general terms and conditions apply to all legal transactions between Elevate Advertising GmbH. — Kobestraße 1, 20457 Hamburg, hereinafter referred to as “agency” in short form, with its contractual partners, hereinafter referred to as “customer” in short form. Different terms and conditions of the customer will only be accepted by the agency after separate and written approval.
1.2. All agreements made between the agency and the customer for the purpose of executing an order must be agreed at least by e-mail, or alternatively in writing. Amendments, additions and ancillary agreements must be made in writing (at least by e-mail) in order to be effective.
1.3. These terms and conditions also apply to all future business relationships with the customer, even if they are not expressly agreed again.
1.4. The agency provides services in the areas of marketing, online marketing, marketing consulting, social media marketing, paid adveritsing, influencer marketing, content, image and video creation, graphics and image editing. The detailed description of the services to be provided is derived in particular from the agency's tender documents, briefings, offers, project contracts, their attachments and service descriptions.
2. Parts of the contract and amendments to the contract
2.1. The basis for agency work and the contractual relationship is the signed (or confirmed by e-mail) offer and the associated service contract. If acceptance has been declared orally, e.g. by telephone or video call, the customer undertakes to immediately confirm the declared acceptance in text form. An order is considered to have been placed even if, before an agreement is reached on all points of the contract with the consent of the customer, the agency has begun part of the execution of the order.
2.2. Unless otherwise specified, responsibility is only for the service mentioned in the offer, but not for the achievement of a specific success. It is possible to change or extend the contract at any time. However, this must be done in writing (at least by email).
3. Services
3.1. The agency has the right to provide services from third parties without the customer's separate consent.
3.2. Unless otherwise agreed in the contract, each position in the offer includes a correction loop, which includes a change in each case. The cancellation of desired changes, subsequent changes and functional changes must also be paid by the customer after expenditure in the amount of the contractually agreed, appropriate remuneration. This also applies to subsequent changes after the start of a new project phase.
3.3. Provided that the customer does not suffer any disadvantages, the agency can also provide the services through newer or different technologies, software, processes or standards as a result of technological progress.
4. Copyright and usage rights
4.1. All copyright and other rights of use of the agency's work released and paid for by the customer for commercial use are transferred to the customer to the extent required by the purpose of the respective order based on both contractual partners. In case of doubt, the agency fulfills its obligations by granting exclusive rights of use in the territory of the Federal Republic of Germany for the media and duration of use of the advertising measure provided by the contracting parties in each case. Any further use of the agency's work results requires the agency's separate approval.
4.2. If the agency uses third parties to fulfill the contract, it will acquire the rights to use their services within the scope of the above provision for the customer at the customer's expense and transfer them accordingly to the customer. Should these rights not be available to this extent in individual cases or if their acquisition is only possible at disproportionately high costs, the agency will inform the customer and proceed in accordance with his instructions. Any additional costs arising from this shall be borne by the customer.
4.3. The customer is entitled to transfer the rights of use in whole or in part to subsidiaries or affiliated companies within a group of companies.
4.4. The agency is entitled — even if exclusive rights of use are transferred to the customer — to use the work results free of charge as part of its own promotion, including after the end of the contract, in all media, including the Internet, social media and as part of competitions and presentations.
4.5. The transfer of rights to the customer is not subject to agency services rejected, aborted or not used within 6 months of handover (concepts, ideas, drafts, etc.). These rights of use remain with the agency, as do the existing property rights.
4. The works created as part of the contract are protected as personal intellectual creations by copyright law. The author is therefore the creator of the work. This provision is considered agreed even if the amount of creation required under copyright law has not been reached.
4.. The rights of use referred to in paragraph 1 sentences 1 and 2 above are settled upon payment of the agreed remuneration. An extension of use beyond the end of the use of advertising material and/or beyond the contract area and/or for use in types of use/advertising media other than those specified in the respective order and/or the right to process the agency's work results requires the express prior consent of the agency and must be paid separately
4.8. The agency assumes no liability for statutory claims by authors for a subsequent increase in remuneration in accordance with Sections 32, 32a UrhG; the customer releases the agency from such claims upon first request. As a precautionary measure, the agency points out to the customer that an author is entitled to further legal claims against the owner of rights of use (e.g. for information, accountability and recall), which cannot be contractually excluded.
5. Obligations of the customer
5.1. The customer provides the agency with all data, information and access required to carry out the project (e.g. access to existing accounts, information about ongoing advertising measures, previous benchmarks and other relevant KPIs, media to be used, legal texts, corporate identity requirements) in full, timely and free of charge. The customer also supports the agency to an appropriate extent in fulfilling its contractually owed service.
5.2. The customer undertakes to provide all access to his accounts, platforms and databases required to carry out the order. After completing the order, the customer is obliged to change the passwords himself immediately so that subsequent misuse is ruled out.
5.3. The customer will issue approvals/approvals in good time that the agency's workflow and thus the implementation of the advertising campaign are not affected. If the agency is unable to provide the services due to lack of and inadequate cooperation or provision, or can only provide the services with additional expenses, it is entitled to claim necessary additional expenses against the customer as a result. All work documents are handled carefully by the agency, protected against access by third parties, used only to process the respective order and are returned to the customer after completion of the order, if this is desired by the customer.
5.4. If the customer places materials for publication on social media (photos, texts, videos, graphics, sound recordings, animations and drawings), he himself must ensure that he has acquired all necessary rights for this, possibly subject to a fee.
5.5. If a photo shoot has been arranged with the products or, for example, with the customer's employees, the customer is obliged to provide the necessary products and/or employees.
6. Compensation
6.1. The remuneration agreed in the contract/offer applies. The agency invoices for its services either after the order has been placed or after the service has been provided.
6.2. The remuneration is due on the payment date specified in the invoice. If no payment date is specified in the invoice, payment is due within 14 days. The customer is automatically in default if the invoice amount is not settled within 14 days of receipt. The right to claim further damage remains unaffected by this provision. In the event of late payment, the legal regulations apply.
6.3. In the event of changes or cancellations of orders, work and the like by the customer and/or if the requirements for the provision of services change, the agency will be reimbursed for all costs arising as a result and the agency will be released from any liabilities to third parties.
6.4. If the customer withdraws from an order before the start of the project, the agency charges the customer the following percentages of the originally contractually agreed fee as a cancellation fee: 50% up to four weeks before the start of the order, 80% from four weeks to two weeks before the start of the order, 100%.
6.5. All prices stated in offers and orders and the resulting amounts to be paid are exclusive of the legally valid sales tax.
6.6. Unforeseeable additional costs require mutual agreement and, if necessary, subsequent remuneration.
6.7. The agency reserves the right to charge a minimum purchase of 640€ per month. If the customer does not use the agency's services as contractually agreed and take a break for one month, the minimum purchase is still required.
7. Duration & termination
7.1. Unless otherwise agreed, the contract automatically ends as soon as the agreed scope or quota has been met, without the need for termination.
7.1.1. Special conditions for the Elevate Playbook (introductory offer): The collaboration ends with the two-hour workshop and the discussion of the Elevate Playbook. Usually after one month at the latest. This contract cannot be terminated properly.
7.1.2. Provisions for the core offering “In 9 steps to an optimized social media presence”: The collaboration ends after 3 months. This contract cannot be terminated properly.
7.1.3. Provisions for the “Monthly Retainer” service offer: Unless otherwise agreed in the contract, the cooperation only ends if the customer terminates the cooperation. Otherwise, the assignment is indefinite. In this case, the cooperation can be terminated with a notice period of 4 weeks to the end of the month.
7.2. The right to terminate without notice for good cause remains unaffected. In particular, the agency is entitled to terminate without notice if the customer defaults on a payment due by more than 2 months or if the customer culpably violates a contractual (cooperation) obligation even after a warning. A prior warning is not required if the client's breach of duty is so serious that the continuation of the contract would be unreasonable for the agency. This is particularly the case if the agency itself would be liable to third parties due to the breach of duty.
7.3. Any termination must be made in writing.
8. Confidentiality
8.1. The parties agree to maintain secrecy about all business and trade secrets and all other confidential information of the respective partner identified as confidential or otherwise identifiable as confidential during the contract period and for a period of at least three years after the end of the respective order.
8.2. The parties may only forward this information to third parties or use it for a purpose other than for the purposes of the contract with the prior written consent of their contractual partner and after the third party's prior written commitment to confidentiality in accordance with the terms of this agreement.
8.3. The above obligations do not apply to confidential information (i) which is or becomes generally known without the disclosing party having breached obligations; (ii) that was disclosed to the disclosing party by third parties authorized to disclose; (iii) that was known to the disclosing party prior to disclosure by the contracting party, or (iv) which the disclosing party must disclose as a result of an obligation under law or regulation.
9. Liability
9.1. The agency is basically liable for damage caused intentionally and through gross negligence. In principle, the agency is only liable for damage caused by slight negligence in the event of a breach of an obligation whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the customer may regularly rely, as well as for damage resulting from injury to life, limb or health.
9.2. The agency's liability for compensation claims by the customer with regard to damage caused by slight negligence is limited in sum to the amount of foreseeable damage that must typically be expected to occur.
9.3. Liability in accordance with paragraph (9.2.) is limited to a maximum of twice the order value of the respective contract under which the damage occurred.
9.4. The agency is not liable for lack of economic success. By this, the parties may understand positive developments in one or more key figures intended by the customer, which provide information about economic activity in a specific period. Typical key figures here include profit, return on investment or shareholder value, but also rationalization or scaling effects.
9.5. The above limitations of liability do not apply to damages based on injury to life, body or health, liability under the ProdHaftG or based on given guarantees.
9.6. The above limitations of liability also apply in favour of the agency/vicarious agents and organs of the agency personally.
9.7. The agency is also exempted from the obligation to perform under the respective contract if and to the extent that the failure to perform services is due to the occurrence of force majeure circumstances following the conclusion of the contract. Force majeure includes, for example, war, strikes, unrest, pandemics, epidemics, expropriations, cardinal changes in law, storms, floods and other natural disasters as well as other circumstances beyond Tutum's control (in particular water ingress, power outages and interruptions or destruction of data-carrying lines).
9.8. Each contracting party must inform the other contracting party immediately and in text form of the occurrence of a case of force majeure.
10. Services provided by third parties
10.1. Freelancers or third parties engaged by the agency are vicarious or vicarious agents of the agency. The customer undertakes not to directly or indirectly commission these employees (permanent employees & freelancers) appointed by the agency as part of the execution of the order with projects in the course of the 12 months following the completion of the order without the involvement of the agency.
11. Final provisions
11.1. The law of the Federal Republic of Germany applies.
11.2. The place of fulfilment and jurisdiction is Hamburg.
11.3. Should a provision of these general terms and conditions be ineffective in whole or in part or lose its legal validity at a later date, this shall not affect the validity of the remaining provisions. Instead of the ineffective provision, another appropriate provision shall apply by way of contract adjustment which comes closest in economic terms to what the contracting parties would have wanted if they had been aware of the invalidity of the provision.