§ 1 SCOPE
Onlinelytics UG offers its customers a holistic range of services in the area of online marketing. Onlinelytics UG provides all services exclusively under the validity of these general terms and conditions in their valid version at the time of the respective contract conclusion. Deviating, supplementary or contradictory terms and conditions of the customer, which Onlinelytics UG does not explicitly acknowledge, are not binding for Onlinelytics UG, even if Onlinelytics UG does not explicitly contradict them. These GTC shall also apply if Onlinelytics UG executes the customer’s orders without reservation in knowledge of conflicting or deviating conditions of the customer. The GTC also apply to all future business relations of Onlinelytics UG with the customer or his legal successor, even if they have not been explicitly agreed upon again.
Onlinelytics UG concludes contracts exclusively with entrepreneurs in the sense of § 14 BGB.
§ 2 CONTRACT CONCLUSION and CONTRACT AMENDMENTS
The contract conclusion takes place through the acceptance of a written or textual offer from Onlinelytics UG, in which the details of the services to be provided by Onlinelytics UG are listed.
As far as employees of Onlinelytics UG without legal power of representation make additional agreements with the customer or bring about contract changes and/or contract supplements, these will only become effective with the written or textual approval of a managing director or authorized signatory.
The presentation of the services of Onlinelytics UG in brochures, advertisements, internet and mere product descriptions are subject to change and non-binding. The customer reserves the right to reasonable technical deviations from information in presentations.
§ 3 Term of Contract / Termination
The term of contract and notice periods shall be based on the individually agreed period in each case. The right to extraordinary termination for good cause remains unaffected. Such cause shall be deemed to exist in particular if the customer fails to meet its payment obligations despite a reminder or is in arrears with the payment of monthly fees amounting to the fee for two months or in the event of a gross violation of the customer’s contractual obligations to cooperate.
§ 4 TYPE AND SCOPE OF SERVICES
The scope of services of Onlinelytics UG is exclusively and conclusively determined by the service description given in the contract documents according to § 2 section 1 as well as any subsequent formally agreed contract amendments.
§5 PAYMENT, PRICES AND TERMS OF PAYMENT
All prices and price quotations are exclusive of the statutory value added tax.
Unless otherwise agreed, only the services expressly specified in the respective contractual documents are included in the prices.
§ 5 COOPERATION OBLIGATIONS
As the success or failure of the cooperation also depends decisively on whether and to what extent the customer cooperates in the realization of the projects within the scope of his capability, he commits himself to support Onlinelytics UG actively and in the best possible way in the performance of the service. The customer is especially obligated:
to provide Onlinelytics UG with all necessary information, documents and materials, especially access data, etc. for the purpose and duration of the execution of the contract;
to grant Onlinelytics UG and its staff and vicarious agents access to all systems and equipment, especially hard- and software, which are subject of the contract;
to work with sufficient and suitable staff within the scope of the execution of the contract as well as to maintain or bring about the smooth functioning of the system.
Onlinelytics UG of any errors, defects or malfunctions immediately and in particular to observe the symptoms in detail and to report them immediately in text form (e.g. email) with a corresponding description. The customer shall support Onlinelytics UG to the best of his ability in the search for the cause of the error and comply with the suggestions for troubleshooting and error correction provided by the agency;
to coordinate the dates and meetings necessary for the execution of the contract with Onlinelytics UG in such a way that the schedule / process agreed upon at the conclusion of the contract is not delayed and in case of doubt to consult Onlinelytics UG in due time;
to ensure a regular, basically daily, sufficient and proper backup of his data;
to provide Onlinelytics UG with requested contents and content elements (image, sound, text or similar) in a common, directly usable digital format;
to ensure that all duties to cooperate necessary for the provision of the agreed services are provided in time, completely and free of charge for Onlinelytics UG.
If the customer does not comply with his duties to cooperate, any specified time periods shall be extended to a corresponding and reasonable extent. Further claims of Onlinelytics UG remain unaffected.
§ 6 CHANGES IN PERFORMANCE
The parties intend a longer-term cooperation based on this contract. In view of the rapidly advancing technology and constant changes in all areas of information technology such as changes in search engine algorithms Onlinelytics UG is entitled to change individual measures from the agreed subject matter of the service during the validity of the contract or to replace them with more suitable services for the customer’s goals if due to technical progress or changes in the information technology environment the individual service loses importance for the intended success of the contract or even hinders it. Onlinelytics UG is obligated to consider the legitimate interests of the customer and to exercise the right of change only according to reasonable discretion.
Requests for changes and additions of the customer are only to be fulfilled by Onlinelytics UG if they are technically feasible and technically and economically reasonable for Onlinelytics UG. It is the responsibility of the customer to bring about the change of the service obligations within the scope of a contract amendment. The additional effort required as a result of a service change/service supplement shall be reimbursed to Onlinelytics UG.
§ 7 DATES, DEADLINES AND PERFORMANCE CONDITIONS
Dates and deadlines for the provision of services or partial services shall only be binding if they are expressly stipulated in the contractual documents according to § 2 point 1 or are subsequently confirmed in text form by a managing director or authorized signatory of Onlinelytics UG.
If the cooperation of the customer is required for the provision of services or partial services by Onlinelytics UG, binding deadlines or dates shall be extended by the time the customer has not fulfilled this obligation despite request.
In case of delays due to requirements of the services to be provided by Onlinelytics UG demanded by the customer after conclusion of the contract, in case of insufficient prerequisites at the customer (e.g. hardware or software deficits), in case of problems with third party products or services necessary for the provision of the contractual services for which Onlinelytics UG is not responsible, as well as other delays for which Onlinelytics UG is not responsible, especially in case of force majeure, natural disasters, opposing sovereign measures, non-granting of official permits, labor disputes, sabotage and unforeseeable lack of raw materials, binding deadlines and dates for the provision of services or partial services shall be extended accordingly.
§ 8 CONSEQUENCES IN CASE OF DEFECTS
In case of a defect the supplementary performance shall be carried out at the discretion of Onlinelytics UG.
Onlinelytics UG can refuse the supplementary performance as long as the customer has not fully paid the remuneration owed for the creation services and the customer has no justified interest in retaining the outstanding remuneration.
Onlinelytics UG is not liable in cases where the customer has made changes to the services provided by Onlinelytics UG, unless these changes had no influence on the development of the defect.
The customer will support Onlinelytics UG in the determination of the defect and the elimination of the defect and will immediately grant access to the information which shows the detailed circumstances of the occurrence of the defect.
If an alleged defect cannot be assigned to a warranty obligation of Onlinelytics UG after an appropriate investigation and the customer could have recognized this, Onlinelytics UG can demand reimbursement and compensation from the customer for the expenses incurred for verification and error correction.
The warranty period is twelve months, starting with the overall acceptance of the work by the customer. This does not apply to claims for damages due to injury to life, body or health and for claims for damages in case of intent or gross negligence or if Onlinelytics UG has fraudulently concealed the defect.
§ 9 RIGHTS RESTRICTION
Subject to any other individual agreement and as far as the purpose of the contract does not necessarily dictate otherwise, all rights to the work results, i.e. all works created by the activity of Onlinelytics UG within the scope of this contract, remain with Onlinelytics UG. However, Onlinelytics grants the customer a simple, non-transferable, locally and temporally unlimited right of use to the work results.
The transfer of the rights of use shall only take place at the time of the complete payment of the remuneration by the customer. Until the complete payment Onlinelytics UG allows the customer the temporary use until revocation. Onlinelytics UG can revoke the provisional granting of the right of use as far as the customer is in default with the payment of the remuneration or a partial remuneration for the duration of the default.
§ 10 PROPRIETARY RIGHTS OF THIRD PARTIES
Both parties declare that all materials and content to be contributed by them and to be used within the scope of this contract or to be provided to the respective other party, if applicable, are free of third-party rights or are at least entitled to pass them on for the purpose of executing the contract and to have them used and processed accordingly by the contractual partner. Both parties shall ensure that they have acquired all rights necessary for the execution of the contract either originally or through corresponding agreements, e.g. with their respective employees, freelancers or other contractual partners or vicarious agents.
In the event of an assertion of property right infringements by third parties, the parties shall inform each other without undue delay and shall provide each other with the information and other reasonable support necessary to defend the asserted claim. The respective other party, insofar as it has introduced the contractual object concerned, shall indemnify the party against which a claim is made against all claims resulting therefrom, in particular claims for damages as well as the costs of legal defense in an appropriate amount. The indemnification shall be subject to the condition that a settlement or an acknowledgement of the claims asserted by the third party shall only be made with prior written consent.
§ 11 EMPLOYEE PROTECTION AND NON-SCAWING
The customer is obligated not to directly or indirectly poach employees of Onlinelytics UG or third parties employed by Onlinelytics UG and not to establish direct contractual relationships with them. The aforementioned prohibition of enticement is valid with the conclusion of the contract and continues for a period of one year after the termination of the contractual relationship.
If the customer violates this obligation, he shall pay a contractual penalty of EUR 25,000.00 in each case of violation. The right to claim damages and/or injunctive relief shall remain unaffected. The contractual penalty shall be offset against any claim for damages.
§ 12 CONFIDENTIALITY AND REFERENCES
The documents, knowledge and experience provided to the other contracting party may only be used for the purposes of this contract and may not be made available to third parties, unless they are intended to be made available to third parties or are already known to the third party. Third parties do not include auxiliary persons such as freelancers, subcontractors, etc. who are called in to carry out the contractual relationship.
Furthermore, the contracting parties agree to maintain confidentiality regarding the content of this contract and regarding the knowledge gained during its execution. The confidentiality obligation also applies beyond the termination of the contractual relationship.
Onlinelytics UG is entitled to refer to the work for the customer in press releases and information, to name the customer as a reference on their website and to reproduce services rendered within the scope of this contract for demonstration purposes. Onlinelytics UG is allowed to set a backlink from the customer website from the imprint with the addition „Online-Marketing von Onlinelytics UG“.
§ 13 OFFENSING, RIGHT OF RETENTION
The customer may only offset or assert rights of retention with undisputed, legally established or ready for decision claims. Counterclaims of the customer which are based on the defective and/or incomplete provision of the respective contractual service by Onlinelytics UG are excluded from the ban on offsetting as well as the ban on the assertion of rights of retention. The customer can only assign rights from this contract with the consent of Onlinelytics UG.
§ 14 DISCLAIMER AND LIMITATION OF LIABILITY
Onlinelytics UG is liable without limitation in case of intent or gross negligence, for injury to life, body or health, according to the regulations of the product liability law as well as to the extent of guarantees assumed by Onlinelytics UG.
Furthermore Onlinelytics UG is liable in case of slightly negligent violation of obligations, the fulfillment of which enables the proper execution of the contract in the first place, the violation of which endangers the achievement of the purpose of the contract and the compliance with which the customer regularly relies on (cardinal obligation) limited to the amount of the damage which is foreseeable and typical according to the type of the subject matter of the contract.
The customer is aware of the importance and necessity of regular, basically daily, proper data backups. If the customer does not back up the data or does not back up the data to an appropriate extent, the liability of Onlinelytics UG is limited to the damage which would have occurred in case of a proper data backup.
A further liability of Onlinelytics UG does not exist. The aforementioned limitations of liability also apply to the personal liability of employees, representatives and organs of Onlinelytics UG.
§ 15 JURISDICTION AND CHOICE OF LAW
Exclusive jurisdiction for all disputes arising from and in connection with this contractual relationship is Munich. The right of Onlinelytics UG to appeal to any legally competent court remains unaffected.
The law of the Federal Republic of Germany shall apply to all legal relationships of the parties arising from and in connection with this contractual relationship, excluding the laws on the international purchase of movable goods as well as international private law.
§ 16 SALVATORY CLAUSE
If any provisions of these General Terms and Conditions are or become invalid in whole or in part, this shall not affect the validity of the remaining provisions of this contract. The invalid provision shall be replaced by the corresponding legal provisions.