GENERAL TERMS AND CONDITIONS OF NAYOKI GMBH
I. Scope of the General Terms and Conditions
1 Nayoki GmbH, Birkenleiten 41, 81543 Munich (hereinafter "Nayoki") is an agency for online marketing services.
These General Terms and Conditions (hereinafter "GTC") apply between Nayoki and the customer (hereinafter "Customer"; Nayoki and the Customer hereinafter together "Contractual Partner"). The Customer and Nayoki are entrepreneurs in the sense of §14 BGB (German Civil Code). 3.
The execution of all marketing services which are the subject matter of the contract (hereinafter referred to as "Nayoki Services") shall be governed exclusively by these GTC. Nayoki may also make use of external services of service providers or other third parties (hereinafter "Third Party Services"; Nayoki Services and Third Party Services hereinafter together "Services"). 4.
General Terms and Conditions of the Customer shall not apply, even if Nayoki does not separately object to their validity. Deviating or contradictory general terms and conditions of the Customer shall therefore only apply if they have been accepted by Nayoki in writing. This also applies if Nayoki provides the Nayoki services without reservation in the knowledge of conflicting or deviating general terms and conditions of the Customer. 5.
5. individual agreements between Nayoki and the customer (including side agreements, supplements and amendments to these GTC) shall have priority over these GTC. For the content of such agreements a written contract between Nayoki and the Customer or the written confirmation by Nayoki shall be decisive. 6.
These GTC shall also apply to all future business relations, even if they are not expressly included again. 7.
Nayoki may amend or supplement these GTC at any time with effect for the future. The customer will be notified of changes to these GTC in text form (including e-mail).
II. conclusion of contracts, subject matter of the contract
1) Nayoki sends a written offer to the customer (hereinafter referred to as "offer"). 2.
Unless otherwise agreed in writing, Nayoki shall be bound by the Offer for fourteen (14) days. If Nayoki does not receive a written declaration of acceptance from the Customer within this period, the offer shall lapse even without a declaration of revocation on the part of Nayoki. 3.
The contract between the customer and Nayoki is concluded by the written declaration of acceptance of the offer by the customer (hereinafter "contract"). 4.
(4) Nayoki shall provide the Nayoki Services in accordance with the terms and conditions agreed in the Contract and in these GTC against payment of the agreed remuneration in due time.
(5) The subject matter of the Contract may consist of a one-off service, also to be provided in parts (provided that this is not unreasonable for the Customer), or of a service provision which is intended to be of a permanent nature.
If there is no offer by Nayoki, an order of the Customer can be accepted by Nayoki either by declaration in text form (including e-mail) or by execution of the Nayoki services, in which case the acceptance by Nayoki refers to the (partial) order which Nayoki has started to execute.
III. Execution of the Nayoki Services
(1) Nayoki determines the manner of performance of the services, unless otherwise agreed in writing.
2) Nayoki shall provide the Nayoki Services through suitable employees. The Customer has no right to the provision of services by certain employees. The customer is not authorised to issue instructions to the Nayoki employees involved in the provision of the services. 3.
If Nayoki recognises that a timely or agreed provision of services is not possible, the customer will be informed and appropriate solutions will be proposed.
IV. Remuneration, Billing
The customer shall pay Nayoki the remuneration stated in the contract. The remuneration comprises both the fee for Nayoki services (hereinafter "fee") and the remuneration for third-party services (hereinafter "media costs"). The remuneration is subject to the applicable statutory value added tax. 2.
Services which are not expressly included in the agreed remuneration shall be remunerated separately. 3.
Nayoki is not obliged to disclose the individual remuneration components for the services to the Customer. 4.
(4) Invoices may be issued from the date of performance of the services or default of acceptance, unless otherwise agreed in writing. Invoices shall be paid by the Customer within fourteen (14) days (without deduction) after Nayoki has issued the invoice. Recurring payments shall be paid by the Customer on the third working day of the month following the month of performance. 5.
Cost estimates by Nayoki are non-binding. Nayoki shall inform the Customer without delay as soon as it is foreseeable that the estimated costs will be exceeded. 6.
(6) Transactions for delivery by a fixed date, i.e. transactions in which the services can only be provided at a certain point in time or within a narrowly defined period, always require a written agreement.
(7) If the customer does not settle a due claim in whole or in part after unsuccessful warning, Nayoki may revoke already agreed terms of payment and fix them anew for future claims. Furthermore, Nayoki is entitled to provide further services only against advance payment or against other securities. 8.
8. Nayoki reserves the right to adjust the remuneration (including daily rates) annually at its reasonable discretion.
V. Minimum Purchase Commitments, Forecasts, Cover Charge
(1) If a certain number or a certain scope of services to be provided is stipulated in the contract, these are minimum purchase obligations.
If the customer does not comply with these minimum purchase obligations, he shall be obliged to pay the corresponding remuneration for the services not accepted. 3.
(3) If it is agreed in the contract that a forecast is to be prepared by the customer, minimum purchase obligations result from this forecast as follows: The Customer shall inform Nayoki quarterly on the fifth working day of a month about the expected demand for Services for the next three months in text form (including e-mail) (hereinafter "Rolling Forecast"), unless otherwise agreed in writing. The first two months of each Rolling Forecast are binding for the customer. This means that the customer is obliged to pay the remuneration for the first two months of the Rolling Forecast even if the services are not called by the customer or cannot be provided for reasons for which the customer is responsible (e.g. because the customer does not fulfil obligations to cooperate). 4.
(4) Nayoki is entitled to provide for the payment of a monthly flat-rate cover by the Customer in the contract for a certain period of time. The customer is obliged to pay this monthly cover charge even if the services are not called by the customer or cannot be provided for reasons for which the customer is responsible (e.g. because the customer does not comply with obligations to cooperate). 5.
Nayoki is entitled not to provide (further) services or to keep them available, if the customer does not fulfil the aforementioned payment obligations.
VI. retention of title
(1) Nayoki reserves the title to all illustrations, drawings, plans, drafts and all other results of the Nayoki services (hereinafter collectively referred to as "service results") until full payment of the remuneration owed as well as other due claims from the current business relationship with the customer.
In case of breach of contract by the customer, in particular in case of default of payment, Nayoki shall be entitled to take back the performance results delivered under retention of title (hereinafter "Retained Goods"). In case of default of payment, a prior setting of a deadline is not required. 3.
After taking back the Reserved Goods, Nayoki shall be entitled to realise them appropriately after having given prior warning; the realisation proceeds shall be set off against the Customer's liabilities, less reasonable realisation costs. 4.
The customer is entitled to process and sell the goods subject to retention of title in the ordinary course of business. 5.
(5) The customer already now assigns to Nayoki all claims arising from the resale in the amount of the final invoice amount (including value added tax) against his customers or third parties with all ancillary rights until the complete repayment of all claims of Nayoki, irrespective of whether the goods subject to retention of title have been resold without or after processing.
The customer remains entitled to collect the claims after the assignment. The right of Nayoki to collect the claims itself remains unaffected. However, Nayoki shall not collect the claims as long as the customer meets his payment obligations from the collected proceeds, is not in default of payment and, in particular, has not filed for insolvency proceedings and has not suspended his payments. If one of these cases exists, Nayoki may demand that the customer discloses the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors of the assignment. Upon the occurrence of such a case, the customer's right to collect the claims shall expire. 7.
In all other respects the customer may not sell, pledge or assign as security the goods subject to retention of title without the prior written consent of Nayoki. In the event of seizure, confiscation or other dispositions of the reserved goods by third parties, the customer must point out the ownership of Nayoki and inform Nayoki immediately. As far as the third party is not in a position to reimburse Nayoki for the judicial and extrajudicial costs of an action according to § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the loss incurred by Nayoki. 8.
The processing or transformation of the reserved goods by the customer is always carried out for Nayoki. If the reserved goods are processed or transformed with other objects not belonging to Nayoki, Nayoki shall acquire co-ownership of the new object in the ratio of the value of the reserved goods to the other processed or transformed objects at the time of processing or transformation; the same shall apply to the new object thus created as to the goods delivered under reservation. 9.
If the reserved goods are inseparably mixed or combined with other objects not belonging to Nayoki, Nayoki shall acquire co-ownership of the new object in the ratio of the value of the reserved goods to the other mixed objects at the time of mixing or combining. If the mixing or combination takes place in such a way that the Customer's item is to be regarded as the main item, the Customer shall transfer co-ownership on a pro rata basis. The customer shall keep the sole ownership or co-ownership thus created for Nayoki.
VII Cooperation, Duties to Cooperate, Acceptance
(1) The contracting parties shall each appoint a responsible contact person. Unless otherwise agreed in writing, communication between the contracting parties shall take place via these contact persons. The contact persons shall take all decisions relating to the performance of the contract without delay. 2.
The customer is obliged to support Nayoki as far as necessary and to create all conditions required for the proper execution of the order. For this purpose, he shall in particular provide all information and materials required for the Nayoki services, such as product and shop information, logos, claims, graphics, texts, titles, title pictures and images, templates, advertising material, company and brand names as well as product packaging (hereinafter "Materials"). The Customer is further obliged to provide, to a reasonable extent, competent personnel to support Nayoki. 3.
Nayoki reserves the right to make changes to the Materials as far as this is necessary for the optimal implementation of the Nayoki Services, no rights of the Customer or rights of third parties are infringed and it is not unreasonable for the Customer. Reasonable are e.g. adjustments of the pixel size of images or changes which are necessary for an important reason. 4.
4. the customer is obliged to ensure that the contact person named by him provides the materials completely, correctly, in good time and free of charge. Furthermore, the customer shall ensure that they are updated. Nayoki may assume that the materials are complete and correct. 5.
(5) If the customer does not fulfil his obligations to co-operate or advance performances in due time, the dates of performance shall be postponed accordingly. The assertion of further claims remains unaffected by this. 6.
If the Customer is obliged to accept the work according to the contract (in particular in case of configuration, modification or other programming services rendered as work performance), this must take place immediately in text form (including e-mail) on the agreed acceptance date, alternatively within one week after notification of the readiness for acceptance by Nayoki. If no acceptance or rejection of acceptance takes place within this period, the services shall be deemed accepted.
VIII. Confidentiality, Right of Reference
1. the contracting parties are obliged to maintain silence about business and trade secrets (e.g. the commercial details agreed between Nayoki and the customer) as well as about other information designated in writing or orally as confidential (hereinafter referred to as "Confidential Information"), which become known in connection with the execution of the contract. Such Confidential Information may only be disclosed to persons who are not involved in the conclusion, performance or execution of the contract with the written consent of the respective other contracting party and only after a non-disclosure agreement has been concluded with these persons. 2.
(2) The obligations in respect of the Confidential Information shall continue for the duration of the Contract and for a further five (5) years after its termination.
3. The foregoing obligations shall not apply to information (i) independently developed by the receiving party without access to Confidential Information of the other party, or (ii) lawfully obtained from a third party authorised to disclose, or (iii) the disclosure of which has been authorised in writing by the disclosing party, or (iv) which has become publicly known without breach of this Clause VIII on the part of the receiving party, or (v) which is required to be disclosed before a court or authority, provided that the receiving party promptly notifies the disclosing party in text form (including email) of such requirement prior to disclosure and assists the disclosing party in obtaining an order to protect the information from public disclosure. 4.
4. the contracting parties are aware that electronic and unencrypted communication (e.g. by e-mail) is fraught with security risks. In this type of communication, the contracting parties will therefore not assert any claims against each other for damages caused by the lack of encryption, unless one of the contracting parties is responsible for the breach of duty (grossly negligent or intentional). In all other respects, the provisions of clause X shall apply. 5.
(5) The Customer grants Nayoki the right to name the Customer as a reference for the Nayoki Services. This includes the right to use the name and logo of the Customer on the websites of Nayoki.
IX. Rights of Use
(1) The Customer grants Nayoki a royalty-free, irrevocable, non-exclusive, sub-licensable and sub-transferable right to use the materials which are the subject of the contract within the scope of the purpose and area of use stipulated in the contract as well as for the duration of the contract.
The Customer warrants to Nayoki that the Materials are free from third party rights and do not infringe any applicable law. The customer is obliged to exempt Nayoki from all claims including the reasonable costs of legal defence in case of claims by third parties as a result of the use of these materials, provided that the customer can be accused of culpable behaviour. 3.
(3) Nayoki reserves all intellectual property rights, in particular industrial property rights, copyrights and related rights, to all performance results.
copyrights and related industrial property rights.
(4) Nayoki does not grant the Customer any rights of use or any other rights of use to the performance results, unless otherwise agreed in writing.
(5) Nayoki may withdraw the rights of use granted to the Customer if the Customer violates restrictions of use or other regulations for the protection against unauthorised use to a not only insignificant extent. Nayoki has to set the customer a reasonable period of time for remedy beforehand. In case of repetition and in case of special circumstances which justify the immediate withdrawal under consideration of the mutual interests, Nayoki may withdraw the rights even without setting a deadline. The customer has to confirm the cessation of use to Nayoki in writing after a withdrawal of the rights of use. Nayoki shall grant the rights of use to the customer again after the customer has stated and assured Nayoki in writing that no infringements of the rights of Nayoki exist any more by his use and that previous infringements and their consequences have been eliminated.
X. Liability
1. the liability of Nayoki for damages in case of simple negligence is limited to damages resulting from the violation of essential contractual obligations, the fulfilment of which enables the proper performance of the contract in the first place and on the observance of which the customer regularly relies and may rely. In this case, liability is limited to the foreseeable damage typical for the contract. This limitation of liability applies in the same way to damages caused by gross negligence by employees or agents of Nayoki who are not organs or executive employees of Nayoki. 2.
2. in the cases of clause X.1 the liability for damages in a contractual year is limited to a (maximum) value corresponding to the fee owed by the customer for the Nayoki services of the previous twelve months. For the avoidance of doubt, only the fee owed by the Client for the Nayoki Services of the previous twelve months shall be relevant, not the media costs (see clause IV.1). 3.
3. in the cases of clause X.1 the liability for indirect damage, consequential damage or loss of profit is limited in accordance with clause X.2.
The above limitations of liability shall apply to all claims for damages, irrespective of the legal grounds, with the exception of claims for damages by the customer (i) on account of intent, (ii) under the Product Liability Act, (iii) on account of fraudulently concealed defects, (iv) on account of defects in respect of which a guarantee of quality has been given (in this respect the liability provision or limitation period resulting from the guarantee shall apply, as the case may be), (v) on account of defects in respect of which a guarantee has been given. (v) due to injury to life, body or health or (vi) due to gross negligence of organs or executive employees of Nayoki. 5.
The above limitations of liability shall also apply to claims for damages of the Customer against organs, executives, employees or agents of Nayoki.
XI. Internet pages, data backup
The customer is aware that the internet as a decentralised network as well as computer servers as complex systems are not always available without interruption. As far as these parameters are therefore outside the sphere of influence of Nayoki, Nayoki is not liable for the fact that the Internet pages and/or hyperlinks designated in the contractual regulations can be reached or activated at any time and from any place in the world. 2.
Nayoki is not responsible for the content of internet pages of customers, other contractual partners of Nayoki or other third parties. This applies in the same way to errors of the software or hardware of the aforementioned groups of persons/companies and damages resulting from a not uninterrupted availability or insufficient functioning of the internet. 3.
3. in case of loss of data Nayoki is only liable for that effort which is necessary for the recovery of the data in case of proper data backup by the customer. In the case of slight negligence on the part of Nayoki, this liability shall only apply if the customer has carried out a proper data backup prior to the measure leading to the loss of data in accordance with the duties of care appropriate to the type of data.
XII. Defect Rights
1. the customer is entitled to the legal rights of defect. 2.
Nayoki shall provide defective Nayoki services in accordance with the contract within a reasonable period of time without additional costs for the Customer, unless this is only possible with disproportionate effort. The assertion of possible further defect rights of the customer remains unaffected by this. 3.
The limitation period for defect rights is one year from the date of performance or, if acceptance is agreed in the contract, from the date of acceptance. However, this limitation does not apply in the cases mentioned in clause X.4.
The Customer shall bear the reasonable costs of an unjustified assertion of defect rights insofar as (i) Nayoki takes action on the basis of a report without there being a defect, unless the Customer was unable to recognise, even with reasonable effort, that there was no defect, or (ii) a reported malfunction cannot be reproduced or otherwise proven by the Customer to be a defect, or (iii) additional expenses are incurred due to the Customer's failure to properly fulfil its obligations (see also clause VII. of these GTC).
XIII Special provisions for defects of title
(1) Nayoki shall be liable for infringements of third party rights by the Nayoki Services only to the extent that the Nayoki Services are used unchanged in accordance with the contract (in particular in the agreed environment of use). Nayoki is liable for infringements of third party rights only within the European Union and the European Economic Area as well as at the place of the contractual use of the Nayoki Services. 2.
If a third party claims against the customer that Nayoki services violate his rights, the customer shall immediately notify Nayoki. Nayoki and, if applicable, its sub-suppliers are entitled, but not obliged, as far as permissible, to defend the asserted claims at their expense. The customer is not entitled to acknowledge claims of third parties before he has given Nayoki reasonable opportunity to defend the rights of third parties in another way. 3.
If the rights of third parties are infringed by the Nayoki Services, Nayoki shall at its own discretion and at its own expense (i) procure for the Customer the right to use the Nayoki Services or (ii) make the Nayoki Services non-infringing or (iii) take back the Nayoki Services with reimbursement of the remuneration paid for them by the Customer (less reasonable compensation for use) if Nayoki cannot achieve any other remedy with reasonable effort. The interests of the customer shall be adequately taken into account. 4.
In all other respects, the provisions of clause XII shall apply mutatis mutandis.
XIV Force Majeure, Hardship
1. delivery and performance times shall be extended to a reasonable extent if the non-fulfilment of the obligations is due to a circumstance which could not be foreseen at the time of the conclusion of the contract and the contracting parties are neither able to prevent these consequences nor to remedy them by reasonable measures (hereinafter referred to as "force majeure").
Force majeure shall be deemed to exist in particular in the event of war, riot, terror, strike, lockout, fire, flood and other natural disasters, pandemics and epidemics, operational or transport disruptions, incorrect or untimely self-supply for which Nayoki is not responsible, also at suppliers of Nayoki, as well as other unforeseeable operational disruptions. 2.
2. the contracting parties are obliged to inform each other immediately about the occurrence of force majeure and to provide detailed information within fourteen (14) days in particular about the extent and, if possible, the expected duration of the force majeure.
3. if the hindrance lasts three (3) months or longer, the contracting parties shall first be obliged to adjust the contract in good faith. If this is not possible or if the impediment lasts six (6) months or longer, the contracting parties shall be entitled to withdraw from the part of the contract not yet performed or to terminate the contract accordingly. 4.
4. this clause XIV. also applies to the effects of recurring circumstances (e.g. effects of the COVID-19 pandemic) irrespective of whether their cause was already known at the time the contract was concluded.
5. if an event occurs (which does not qualify as force majeure) beyond Nayoki's control which changes the balance of the contract, either because the cost of the services has increased or because compliance with the deadline is affected, and Nayoki could not reasonably have taken this event into account at the time of the conclusion of this contract (so-called "hardship" situation), the contracting parties shall agree in good faith on the measures necessary to eliminate or modify this hardship (e.g. e.g. with regard to the remuneration of the additional work).
XV Term
The contract shall come into effect upon receipt of the declaration of acceptance in accordance with section II.3 of these GTC. The contract may be concluded either for a fixed period (hereinafter "fixed term") or for an indefinite period (hereinafter "indefinite term"). 2.
Ordinary termination during the fixed term is excluded. 3.
(3) The contract may be terminated during the indefinite term by either contracting party with a notice period of three months to the end of the month.
4. the right of both contracting parties to extraordinary termination for good cause remains unaffected.
(5) Terminations must be made in writing to be effective.
XVI. data protection
(1) Nayoki processes the personal data received from the customer in accordance with the respective applicable legal provisions.
The Customer shall conclude the necessary agreements with Nayoki for a possible access to personal data. 3.
3. the customer can find information on data protection at nayoki.com/datenschutz/.
XVII. final provisions
(1) The Customer may not assign or transfer the contract as a whole or individual contractual rights in whole or in part without the prior written consent of Nayoki.
Nayoki is entitled to use subcontractors for the performance of its obligations towards the Customer. The Customer may object to this use of subcontractors for good cause. 3.
(3) The offsetting or exercise of a right of retention by the customer due to disputed or not legally established counterclaims is excluded. The exercise of a right of retention by the customer is also excluded insofar as the counterclaims are not based on the same contractual relationship. 4.
4 German law shall apply. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the referral rules of German private international law shall be excluded.
All amendments and supplements to this contract must be made in writing; this also applies to any amendment of this written form requirement. Insofar as written form is agreed (e.g. for notices of termination, withdrawal), text form (including email) shall not be sufficient. 6.
The exclusive place of jurisdiction for all disputes between the contracting parties is the registered office of Nayoki. Nayoki may also sue the customer at his place of business. 7.
(7) Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions and the contracts concluded on the basis thereof. If individual provisions of such contracts are invalid or contain a loophole, the invalid provision or loophole shall be replaced by a provision that comes as close as possible to the economic intent of the parties.